NYPL RESEARCH LIBRARIES
3 3433 08044319 9
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THE NEW YORK
PUBLIC LIBRARY
ASTOR, LENOX
TILDEN FOUNDATIONS
From the original by Gilbert Stuart after the engraving of H. B. Ball, Jr.
/■O^^^y ZS&C £C^£^? S^
JAMES MADISON'S NOTES
OF DEBATES
IN THE
FEDERAL CONVENTION OF 1787
AND THEIR RELATION TO A MORE PER-
FECT SOCIETY OF NATIONS
K
BY
JAMES BROWN SCOTT
Technical Delegate of the United States to the Second Hague Peace
Conference ; Member of the Institute of International Law ;
President of the American Institute of International Law
NEW YORK
OXFORD UNIVERSITY PRESS
AMERICAN BRANCH: 35 WEST 32ND Street
LONDON, TORONTO, MELBOURNE, AND BOMBAY
1918
THE NEW YORK
PUBLIC LIBRARY
TILDEN FOUNDATIONS
R 1919
^^cm,— mi — m
Copyright, iqi8
by Oxford University Press
american branch
TO
ARTHUR DEERIN CALL
THIS LITTLE BOOK IS AFFECTIONATELY
INSCRIBED
" Now a new strain, a new impulse, the strain and impulse of those
who build and make good what they have achieved, was upon the leaders
of the young States, and they spoke their chastened thought like mas-
ters." (Woodrow Wilson, A History of the American People, Ch.
II, " Founding a Federal Government," Vol. Ill, p. 82, 1901.)
" What we seek is the reign of law, based upon the consent of the
governed and sustained by the organized opinion of mankind." (Presi-
dent Wilson's Address of July 4, 1918, delivered at Mount Vernon.)
PREFACE
For years past the writer of this little book has
been of the opinion that the Federal Convention of
the States which formed the Constitution of the
United States was in fact as well as in form an
international conference. For this reason he is
firmly convinced that the proceedings of the Con-
vention are therefore of interest in this day of inter-
national conferences, as showing the steps by
which the thirteen States of the western world,
claiming to be sovereign, free and independent,
were able to form the one large, successful and
enduring union of States to be found in the annals
of history.
Whether the Society of Nations will care to
form a more perfect union of its members is for
them alone to decide, but if they should care to
strengthen the bonds that unite them and con-
sciously to form an international organization, in
which the States shall recognize their interdepen-
dence as well as their independence, Mr. Madison's
Notes of the proceedings of the Federal Conven-
tion of 1787, in which that happy result was
achieved, should be mastered and the experience
of the United States under the more perfect union
be taken into consideration.
In this connection it may be added that an edi-
tion of Mr. Madison's Notes, prepared by Mr.
viii Preface
Galliard Hunt and the undersigned, is in press, to
which have been prefixed and appended the var-
ious documents requisite for a correct understand-
ing of the nature and labors of the gathering, and
which establish without argument or comment its
international character, and its international value.
James Brown Scott,
Washington, D. C.
November n, 1918.
TABLE OF CONTENTS
Quotations from Woodrow Wilson
Preface
James Madison — Tabula Vitae
Bibliography of the Notes
The Colossal Task
A significant record of a significant event
Scope of this inquiry
Mr. Madison and his qualifications
Mr. Madison's own evidence
His infinite patience and accuracy
Origin of the Conference
The prevailing anxiety
Specific difficulties
Alternatives ....
The regulation of commerce
Meeting at Alexandria
At Annapolis
Call of the Convention
Accomplishing the Impossible
The impossible task
President and Secretary
Credentials ....
Committee on rules and orders
Vote by States ....
Election of committees by ballot
Significance for Society of Nations
PAGE
vi
vii
XV
xvii
i
i
3
4
5
7
13
13
14
16
17
i7
18
19
19
20
21
22
22
22
23
23
Table of Contents
General Interests .
The more serious problems presented by the Articles of
Confederation ....
Impotence of the central authority
Obvious reforms needed
The bold decision
Equality of States ....
Large and small States
The basis for renunciation
" Safe "
Committee on " Compromise "
The two extremes ....
The compromise on representation
Local Interests
Slaves
The commercial motive
Again a compromise
Legislature, Executive, Judiciary
International Significance of the, States of the
Union
Nation or Union of States
Relation of States to the Union .
" The People " . . . .
Two sovereignties and their relation
The Supreme Law
The Society of Nations and the Union of States
A court
Plan to coerce States rejected ....
Coercion for individuals only ....
Basis of the Supreme Law
PAGE
24
Table of Contents
XI
PAGE
Each State with two constitutions . . . -57
Supreme Law of both States and Union ... 58
Revision 59
Constitutionality 59
Amendments 59
Secession 59
Admission of new States 60
Relation of Justiciable to Political Questions . 61
The unconstitutionality of an act .... 62
Difference between judicial and political cases . . 66
How political questions may become judicial . . 67
Mr. Justice Baldwin 68
A lesson for the Society of Nations . . . -7°
Jurisdiction by consent and delegated authority . -72
A light unto the world 73
The Judiciary in the Constitutional Convention . 76
Again the international significance .... 79
The more perfect Union or Society of Nations . . 80
Certain parallels 82
Neither national nor federal 83
The preamble and its limitations .... 84
Difficulty overcome in Preamble . . . .86
Lines between the States 88
The American Union Interpreted by the Supreme
Court 89
Object of the Constitution 89
In Conclusion 94
The Rising Sun 96
The Convention for the Pacific Settlement of In-
ternational Disputes 97
xii Table of Contents
PAGE
Benjamin Franklin's forecast 98
Madison and the liberty of the world ... 99
Appendix 101
The Declaration of Independence, July 4, 1776 . 103
The Articles of Confederation, 1776-1781 . . no
The Constitution of the United States, 1787 . . 124
ILLUSTRATIONS
Portrait of Mr. Madison Frontispiece
From the original by Gilbert Stuart, after the engrav-
ing of H. B. Hall, Jr.
Facing Page
First page of Mr. Madison's manuscript — facsimile . . I
Facsimile reproduction of Mr. Madison's " Notes " relat-
ing to coercion of States 5 2
Last page of Mr. Madison's manuscript — facsimile . . 97
JAMES MADISON— Tabula Vitae
Born, Port Conway, King George County, Vir-
ginia, March 16, 1751.
Graduated at Princeton, 1771.
Delegate to the Convention of Virginia, 1776.
Member of House of Delegates, 1776.
Member of Governor's Council, 1777.
Delegate to Continental Congress, 1780.
Member of House of Delegates, 1784.
Member to Annapolis Convention, 1786.
Delegate to Congress, 1787.
Member of Federal Convention, 1787.
Member of the Constitutional Convention of
Virginia, 1788.
Member of House of Representatives, 1789-1797.
Member of the House of Delegates of Virginia,
1799.
Secretary of State of the United States during
President Jefferson's Administration, 1 801 -1809.
President of United States, 1809-1817.
Delegate to the Constitutional Convention of
Virginia, 1829.
Died, Montpelier, Orange County, Virginia,
June 28, 1836.
BIBLIOGRAPHY OF MADISON'S NOTES
OF DEBATES IN THE FEDERAL
CONVENTION OF 1787
The Papers of James Madison, purchased by order of Congress; being
his correspondence and reports of debates during the Congress
of the confederation, and his reports of debates in the Federal
Convention; now published from the original manuscripts, depos-
ited in the Department of State, by direction of the Joint Library
Committee of Congress, under the superintendence of Henry D.
Gilpin. Washington, Langtree & O'Sullivan, 1840. 3 vols., facsim.
Vol. 2-3. Debates in the Federal Convention of 1787. Vol. 2,
pp. 683-1242; Vol. 3, pp. 1243-1264.
(Some copies of this edition have the imprint New York; J. & H.
G. Langley, 1841, and others are dated Mobile, 1852. Still
other copies were published in Boston.)
Debates on the Adoption of the Federal Constitution, in the Conven-
tion held at Philadelphia, in 1787; with a diary of the debates
of the Congress of the Confederation; as reported by James
Madison. Revised and newly arranged by Jonathan Elliot. Com-
plete in one volume. Volume v. Supplementary to Elliot's
Debates. Washington, printed for the Editor, 1845. xxn, p. 641.
(In 1853 the plates passed into the hands of J. B. Lippincott &
Co., who have printed several editions, with change of date only.)
Journal of the Federal Convention kept by James Madison, Reprinted
from edition of 1840, which was published under direction of the
United States Government from the original manuscripts. Ed. by
E. H. Scott. Special edition, Chicago, Albert, Scott & Co., 1893.
805 p.
(Another edition was published by Albert, Scott & Co. in 1893,
in two volumes, and in 1898, Scott, Foresman and Company
(Chicago) issued a two volume edition.)
Madison's Notes of the Proceedings of the Federal Convention. Wash-
ington, Dept. of State, 1900. 904 p.
Published as volume 111 of the Documentary History of the
Constitution of the United States of America, 1787-1870, published
by the Department of State, 1894-1905.
The Writings of James Madison, comprising his public papers and
his private correspondence, including numerous letters and
documents now for the first time printed. Ed. by Gaillard Hunt.
New York [etc.], G. P. Putnam's Sons, 1900-10. 9 vols., illus.,
6 facsim.
xviii Bibliography of Madison's Notes
Vol. 3-4. 1787. The Journal of the Constitutional Convention.
1902-1903. Vol. 3-4, 471 p.; vol. 4, 551 p.
The Journal of the Debates in the Convention which framed the Con-
stitution of the United States, May-September, 1787, as recorded
by James Madison. Ed. by Gaillard Hunt. New York and Lon-
don, G. P. Putanm's Sons, 1908. 2 vols., 5 facsim.
The Records of the Federal Convention of 1787. Ed. by Max Farrand.
New Haven, Yale University Press 0etc, etc.], 1911. 3 vols.
Vol. 1-2. The Records of the Federal Convention of 1787.
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JAMES MADISON'S NOTES OF DEBATES
IN THE FEDERAL CONVENTION
OF 1787 AND THEIR RELA-
TION TO A MORE PERFECT
SOCIETY OF NATIONS x
The Colossal Task
The notes of debates in the Federal Convention,
iield in the city of Philadelphia in the State of A signifi-
Pennsylvania, from the 25th day of May to the record
17th day of September, in the year of our Lord °f ■ >
one thousand seven hundred eighty-seven, are notes event,
which James Madison of Virginia, an eye witness
and active participant, made from day to day, from
hour to hour, and from minute to minute, of the
proceedings of that gathering. The Convention
was composed of official delegates of twelve of
the thirteen " free, sovereign and independent
States " of America forming an imperfect union
or loose league under Articles of Confederation,
which articles had been drafted during the war
1 The quotations from Mr. Madison's Notes are taken in every
instance from volume m of The Documentary History of the Consti-
tution containing them in the form in which they were left by the
distinguished reporter and statesman.
As, however, Mr. Madison arranged his Notes chronologically, and
as the reference in the text is made in each instance to the specific
session and date thereof, any edition of the Notes may be used.
2 Madison's Debates in Federal Convention
of the American Revolution by the delegates of
the thirteen States in the Continental Congress, and
ratified thereafter from time to time by their
respective legislatures, and binding upon all when
finally ratified by the last of the thirteen on March
i, 178 1. From its origin and nature this body of
official delegates was at the time generally known
as the Federal Convention. It is now popularly
termed the Constitutional Convention because its
labors resulted in a Constitution intended for the
thirteen, now binding upon the forty-eight po-
litical communities forming the United States of
America. It was thus, in inception, nature and
form, a conference; from the political point of
view it was an American, from the geographical
situation a continental, from the international as-
pect it was an international conference. The
States represented in this conference formed, it
may be said, a group apart from the Society of
Nations and held only loosely together by their
common consent. They were the product of a
political philosophy in which the people of each
State were the source of power within the State.
They were separated by an ocean from the Old
World. They had a continent within which to
experiment. The experience of Europe was to
them both a guide and a warning. With no
obstacles to overcome but those of their own cre-
ation, no mistakes to correct but their own, they
were faced with an opportunity unusual as it was
significant. That we of to-day know how that
opportunity was utilized is due to the pains-
And a More Perfect Society of Nations 3
taking care and unwavering devotion of James
Madison.
Inasmuch as this assembly was an international
conference — Mr. Madison himself calls it a
" Federal Convention " — the instrument of gov- Scope
ernment which it framed and recommended to the in qu }^
Congress and the States for ratification, properly-
called a Federal Constitution, is an international
document. It seems natural, therefore, that we
should all in this period of international transi-
tion be interested to consider Mr. Madison and
the manner in which he took the notes; to review
the reasons which led the States to appoint dele-
gates to confer in Philadelphia; to recount the
difficulties met and overcome in compromising
adverse and outwardly irreconcilable interests on
the part of the States; to analyze the main pro-
visions which the delegates in conference framed
for a more perfect union of the several States,
and to indicate in general how the Society of
Nations can profit by the labors of this Federal
Convention. If men be minded to create a more
perfect Society of Nations and to endow it with
agencies to carry into effect the terms of their
agreement, they will be heartened by the history
of these things, for, as the venerable Dr. Franklin
said in speaking of the Convention, " We had
many interests to reconcile. 1 ' '
The man who took notes of the debates of the
conference was ideally qualified for his self-
1 Letter dated Philadelphia, October 22, 1787, from Benjamin
Franklin to Mr. Grand. {Documentary History of the Constitution,
published by the Department of State, vol. IV., pp. 341-342.)
4 Madison's Debates in Federal Convention
Mr. Madi- imposed task, for, while neither the official Sec-
his quali- retary nor the designated reporter of the confer-
fications. ence> h e was a delegate from Virginia, cognizant
of the aims and purposes of the gathering which
he, more than any man then living, had helped
to bring about. As a member from Virginia of
the Continental Congress, acting under and in
accordance with the Articles of Confederation, he
had learned to appreciate from practical experi-
ence the defects of the Articles, to amend which
the conference had been called. He was person-
ally acquainted with many of the leading figures
of the conference, inasmuch as they had served
together in the Congress, and he was therefore
familiar with their style of speech and manner
of speaking. Having abstracted the debates of
the Congress in which they and he had partici-
pated, he was already a practiced reporter.
Added to these personal and technical qualifica-
tions he was deeply impressed with the impor-
tance of the occasion; indeed, he had prepared
himself by a careful and elaborate study of the
defects of the government, or rather the lack of
government under the Articles, and his " Obser-
vations " in which he recorded his views of those
defects is today the most authentic and detailed
survey of the subject from the pen of any con-
temporary statesman, publicist or chronicler. He
had further prepared himself for the role which
he was to play as a delegate by a study of all
known instances of federation in so far as the
scanty material then at hand would permit. He
And a More Perfect Society of Nations 5
had finally fitted himself for that leadership in
the conference accorded him by his fellow dele-
gates from the first day of its proceedings, by
drafting and submitting in advance the nature
and scope of the amendments to be proposed,
and also the " Plan " presented by the delegation
of Virginia which served as the basis of discus-
sion, and which, modified in principle and in
form, became the Constitution of the perfected
Union. But in addition, if indeed anything can
be added, he went to the conference with the
deliberate intention, formed in advance and car-
ried out from day to day, of recording the pro-
ceedings and of taking down the debates in his
system of original shorthand, in order that future
students of Federal Government at least should
have an authentic and adequate account of the
Federal Convention of 1787.
We do not need to conjecture as to his inten-
tions in these matters, to examine his formal
writings, to search his personal correspondence or Mr - Madi-
, , f , . _. son's own
to bring together passages from different sources evidence.
in order to establish these facts, as Mr. Madison
has saved us the trouble by stating it all in
express language and in detailed form in the
preface which he himself prepared for the de-
bates, from which the following three paragraphs
are quoted:
The curiosity I had felt during my researches
into the History of the most distinguished Con-
federacies, particularly those of antiquity, and
the deficiency I found in the means of satisfying
6 Madison s Debates in Federal Convention
it more especially in what related to the process,
the principles — the reasons, & the anticipations,
which prevailed in the formation of them, deter-
mined me to preserve as far as I could an exact
account of what might pass in the Convention
whilst executing its trust, with the magnitude of
which I was duly impressed, as I was with the
gratification promised to future curiosity by an
authentic exhibition of the objects, the opinions
& the reasonings from which the new System of
Govt, was to receive its peculiar structure &
organization. Nor was I unaware of the value
of such a contribution to the fund of materials for
the History of a Constitution on which would be
staked the happiness of a young people great
even in its infancy, and possibly the cause of
Liberty throught the world.
In pursuance of the task I had assumed I chose
a seat in front of the presiding member, with the
other members, on my right & left hand. In this
favorable position for hearing all that passed, I
noted in terms legible & in abbreviations & marks
intelligible to myself what was read from the
Chair or spoken by the members; and losing not
a moment unnecessarily between the adjournment
& reassembling of the Convention I was enabled
to write out my daily notes during the session or
within a few finishing days after its close, in the
extent and form preserved in my own hand on my
files.
In the labor and correctness of this I was not
a little aided by practice, and by a familiarity
with the style and the train of observation and
reasoning which characterized the principal
speakers. It happened, also, that I was not absent
a single day, nor more than a casual fraction
of an hour in any day, so that I could not
And a More Perfect Society of Nations 7
have lost a single speech, unless a very short
one.
Nobly did Madison perform his mission,
although the labor involved would have broken
down the resolution of a more ordinary person. ?j? nite
But, fortunately, James Madison was a determined patience
little man, set in his ways, full of devotion to the *"J? uracy _
cause in which his heart was enlisted and his
nation involved, and permeated with an enthusi-
asm not sporadic only, but real and enduring.
He found the duty, for duty it was, irksome. In
a letter to his friend Thomas Jefferson, of July
18, 1787, when the conference was in the throes
of the struggle between the pretensions of the
big and the claims of the little States, in which
Mr. Madison, as a delegate from Virginia, stood
by the big States, he wrote:
I have taken lengthy notes of everything that
has yet passed, and mean to go on with the drudg-
ery, if no indisposition obliges me to discon-
tinue it. 2
And he is reported to have remarked to his
friend, Edward Coles, an early and highly re-
spected governor of Illinois, " that the labor of
writing out the debates, added to the confine-
ment to which his attendance in Convention sub-
jected him, almost killed him: but having under-
1 Documentary History of the Constitution, vol. iii., pp. 796W-0;
Hunt, Writings of James Madison, vol. ii., p. 410; Farrand, Records of
the Federal Convention, vol. iii., p. 550.
* Documentary History of the Constitution, vol. iv., p. 236.
8 Madison s Debates in Federal Convention
taken the task, he was determined to accom-
plish it." x
Mr. Jefferson in his turn, after reading and
pondering the Notes, wrote under date of August
10, 1815, to John Adams, and during Mr. Mad-
ison's term as president of the United States:
Do you know that there exists in manuscript
the ablest work of this kind ever yet executed, of
the debates of the constitutional convention of
Philadelphia in 1788 [87]? The whole of every-
thing said and done there was taken down by Mr.
Madison, with a labor and exactness beyond com-
prehension. 2
If John Adams did not know, he doubtless
suspected it, as the members of the conference
looked upon Mr. Madison as its reporter even
if he himself thought it best to have the Notes
appear posthumously. In any event, Mr. Jeffer-
son's statement as to Mr. Madison's labors and
the accuracy of his manuscript is correct, for as
a reporter he spared no efforts to attain accuracy
during the Convention, and after its adjourn-
ment he took pains to fill up the few omissions
which he noted upon reflection or rereading.
Thus in a letter dated New York, August 21,
1789, although busied with the organization of
the government under the Constitution, he never-
theless snatched a moment from his congressional
duties to dragoon Edmund Randolph, soon to be
1 Hugh Blair Grigsby, The History of the Virginia Federal Coil'
vention of 1788, 2 vols., vol. i., p. 95, note.
2 Paul Leicester Ford, The Writings of Thomas Jefferson, vol. ix.,
p. 528.
And a More Perfect Society of Nations 9
the first Attorney General of the United States,
who had introduced on behalf of his colleagues
the Virginia plan, into furnishing him the notes
of his address on that occasion, saying:
I find in looking over the notes of your intro-
ductory discourse in the Convention at Philada.
that it is not possible for me to do justice to
the substance of it. I am anxious for particular
reasons to be furnished with the means of pre-
serving this as well as the other arguments in that
body, and must beg that you will make out &
forward me the scope of your reasoning. You
have your notes I know & from these you can
easily deduce the argument on a condensed plan.
I make this request with an earnestness wch.
will not permit you either to refuse or delay a
compliance. 1
Mr. Randolph complied, and an abstract of
the speech in his own handwriting is accordingly
included in the Notes. But we know that this
1 Documentary History of the Constitution, vol. v., p. 192.
Regarding the Virginian plan, often referred to as Mr. Randolph's,
because he introduced it on behalf of the Virginian delegation, Mr.
Madison says in the proposed preface to his Notes:
" On the arrival of the Virginian Deputies at Philad^ it occurred
to them that from the early and prominent part taken by that State
in bringing about the Convention some initiative step might be ex-
pected from them. The Resolutions introduced by Governor Randolph
were the result of a Consultation on the subject; with an understand-
ing that they left all the Deputies entirely open to the lights of dis-
cussion, and free to concur in any alterations or modifications which
their reflections and judgements might approve. The Resolutions as
the Journals shew became the basis on which the proceedings of the
Convention commenced, and to the developments, variations and
modification^ of which the plan of Gov* proposed by the Convention
may be traced." {Documentary History of the Constitution, vol. iii.,
796W/-H.)
io Madison's Debates in Federal Convention
help from the outside was rare, for Mr. Madison
himself says in his draft of a preface,
With a very few exceptions the speeches were
neither furnished, nor revised, nor sanctioned, by
the speakers, but written out from my notes, aided
by the freshness of my recollections . . . the
exceptions alluded to were, — first, the sketch fur-
nished by Mr. Randolph of his speech on the
introduction of his propositions, on the twenty-
ninth day of May; secondly the speech of Mr.
Hamilton, who happened to call on me when
putting the last hand to it, and who acknowledged
its fidelity, without suggesting more than a very
few verbal alterations which were made; thirdly,
the speech of Gouverneur Morris on the second
day of May [July], which was communicated to
him on a like occasion, and who acquiesced in
it without even a verbal change. The correctness
of his language and the distinctness of his enun-
ciation were particularly favorable to a reporter.
The speeches of Doctor Franklin, excepting a few
brief ones, were copied from the written ones
read to the Convention by his colleague, Mr. Wil-
son, it being inconvenient to the Doctor to remain
long on his feet. 1
Indeed, Mr. Madison's conception of accuracy
and of the reporter's duty was such as to cause
him to preserve even the little " nasty " things
said about himself, within and without the Con-
vention. Thus in the session of July 5th, Mr.
Patterson, sponsor of the New Jersey or small
State plan, acknowledged that " the warmth [of
'Hunt, Writings of James Madison, vol. ii., p. 411; Farrand,
Records ^of the Federal Convention, vol. iii., pp. 550-551.
And a More Perfect Society of Nations u
Mr. Bedford] complained of was improper; but
he thought the Sword & the Gallows little cal-
culated to produce conviction. He complained
of the manner in which M r M — & M' Gov-
Morris had treated the small States." x It would
have been so easy to omit the last sentence
altogether, or to leave only the reference to " Mr.
Govr. Morris," who had been the chief offender.
But this would not have been history, and the
" Mr. M" here referred to, was dealing with
history. Again, it was only a very honest man,
with a scrupulous, indeed one might say, an
abnormal or extravagant regard for accuracy,
who would record, preserve and add as a note
to the session of June 15th, the following remarks
made to him in person by John Dickinson:
You see the consequence of pushing things too
far. Some of the members from the small States
wish for two branches in the General Legislature,
and are friends to a good National Government;
but we would sooner submit to a foreign power,
than submit to be deprived of an equality of
suffrage, in both branches of the legislature, and
thereby be thrown under the domination of the
large States. 2
Another instance of Madison's accuracy is the
note appended to Charles Pinckney's speech in
the session of June 25th, for which that young and
aggressive but able person had carefully prepared
himself, and which he wished to have handed
1 Documentary History of the Constitution, vol. iii., p. 278.
2 Documentary History of the Constitution, vol. iii., pp. 124-125.
12 Madison s Debates in Federal Convention
down to posterity. The reporter included in his
text the copy handed him, saying in a note, " the
residue of this speech was not furnished like the
above by Mr. Pinckney." 1 This otherwise
trifling incident is important in that Pinckney's
draft shows the accuracy of Mr. Madison's tran-
scription.
A careful examination of the somewhat elab-
orate notes made by Robert Yates, a delegate
from the State of New York, who, on July ioth,
withdrew from the Convention in disgust at the
way things were going; of the fragmentary and
imperfect notes by Rufus King first published
in 1894, Mr. King being a delegate from the
State of Massachusetts, but later a distinguished
resident of New York, and of the desultory and
scattered notes which have more recently come
to light of James McHenry, a delegate from the
State of Maryland, only establishes Mr. Madi-
son's accuracy, sets his skill as a reporter hors de
concours, and confirms to the letter Mr. Jeffer-
son's opinion " that the whole of everything said
and done there was taken down by Mr. Madison
with a labor and exactness beyond comprehen-
sion."
Documentary History of the Constitution, vol. iii., p. 207.
And a More Perfect Society of Nations 13
Origin of the Conference
The condition of affairs in America on the eve
of the conference filled many an observer abroad
with dismay and many a citizen at home with The
apprehension lest the fair fruits of the Revolution anxiety" 2
be lost, lest for example out of the erstwhile
colonies, held more or less in check by the
mother country, now States united but not har-
monious under the Articles of Confederation,
there might emerge thirteen sovereign, free and
independent States bent upon exercising their
sovereignty, freedom and independence after the
manner of their elders if not betters of Europe.
There was a profound and general dread in
America of any form of government under which
the interest of the one might prevail over that
of the many, and the common good be sacrificed
to the ambition of the few strong enough to
satisfy their political ambitions and predatory
appetites. How to make their world " safe for
democracy " was as keen a question then as for
us now.
In the unfinished preface to the Notes written
some forty years later, Mr. Madison briefly
touched upon the situation, which, indeed, he
had treated more fully in his Memorandum on
the defects of the Confederation. In the closing
days of his life, certain conditions, even those
ceasing to exist long ago, stood out undimmed by
age and so important that they could neither
14 Madison's Debates in Federal Convention
be overlooked in retrospection nor left unre-
corded by this most conscientious of observers.
In respect to the relations of the States with one
another and with foreign Powers, he then felt
justified in saying:
At the date of the Convention, the aspect &
retrospect of the pol. condition of the U. S. could
not but fill the pub. mind with a gloom which
was relieved only by a hope that so select a Body
would devise an adequate remedy for the existing
and prospective evils so impressively demand-
ing it.
It was seen that the public debt rendered so
sacred by the cause in which it had been incurred
remained without any provision for its payment.
The reiterated and elaborate efforts of Cong, to
procure from the States a more adequate power
to raise the means of payment had failed. The
effect of the ordinary requisitions of Congress
had only displayed the inefficiency of the authy.
making them; none of the States having duly
complied with them, some having failed alto-
gether or nearly so; . . .
The want of authy. in Congs. to regulate Com-
merce had produced in Foreign nations partic-
ularly G. B. a monopolizing policy injurious to
the trade of the U. S. and destructive to their
navigation; . . .
The same want of a general power over Com-
merce led to an exercise of this power separately,
by the States, wch. not only proved abortive, but
engendered rival, conflicting and angry regula-
tions. Besides the vain attempts to supply their
respective treasuries by imposts, which turned
their commerce into the neighboring ports,
And a More Perfect Society of Nations 15
. . . the States having ports for foreign com-
merce, taxed & irritated the adjoining States,
trading thro' them, as N. Y. Pena. Virga. & S.
Carolina. Some of the States, as Connecticut,
taxed imports as from Massts. higher than im-
ports even from G. B. of wch. Massts. com-
plained to Virga. and doubtless to other States.
In certain cases the Fedl. authy. was violated
by Treaties & wars with Indians, as by Geo.:
by troops, raised & kept up, witht. the consent of
Congs. as by Massts. by compacts witht. the con-
sent of Congs. as between Pena. and N. Jersey,
and between Virga. and Maryd. 1
But these matters relate primarily to their
outward conduct. " In the internal administra-
tion of the States," Mr. Madison continued, " a
violations of Contracts had become familiar in
the form of depreciated paper made a legal
tender, of property substituted for money, of In-
stalment laws, and of the occlusions of the Courts
of Justice; although evident that all such inter-
ferences affected the rights of other States, rela-
tively Creditor, as well as Citizens Creditors
within the States." 2
And after enumerating instances of lack of uni-
formity " in cases requiring it," such as natural-
ization, bankruptcy laws, and the want of " a
coercive authority operating on individuals and
a guaranty of the internal tranquillity of the
States," he drew the natural consequence from
1 Documentary History of the Constitution, vol. iii., pp. 7961'-;.
2 Documentary History of the Constitution, vol. iii., p. 796/t.
1 6 Madison's Debates in Federal Convention
this condition of the Union that " the Fedl. authy.
had ceased to be respected abroad, and disposi-
tions shewn there, particularly in G. B., to take
advantage of its imbecility, and to speculate on
its approaching downfall; at home it had lost
all confidence & credit. The unstable and unjust
career of the States had also forfeited the respect
& confidence essential to order and good Govt.,
involving a general decay of confidence & credit
between man & man." *
In a word the States had patched up a union
during the war of independence in order to
obtain its recognition by Great Britain; and
with the signing of the treaty of peace on Sep-
tember 3, 1783, between that country and repre-
sentatives of the United States, mentioning each
of the thirteen by name, and recognizing them
" to be free, sovereign and independent States,"
to quote from the Treaty, the politicians of the
day apparently lost interest in the Union which
had served its purpose, and turned their undi-
vided attention to domestic affairs of their respec-
Aiterna- tive States. If, however, the States were to live
together, and geography had done its best to settle
that question for them, they either had to observe
the Articles of Confederation, revising them
where faulty or inadequate, or, brushing the
Articles aside, to settle by treaty the relations that
they should sustain with one another.
The regulation of commerce which had caused
the colonies to turn their backs upon the mother
1 Documentary History of the Constitution, vol. iii., p. 796*.
tives.
And a More Perfect Society of Nations 17
country, was destined to draw the States together.
The State of Maryland owned the Potomac River
and claimed jurisdiction to low water mark on
the Virginian shore. This was a source of con-
tention on the part of the larger commonwealth,
but the Maryland charter was clear, or at least so
clear that the Virginian men of affairs, lawyers The
111 11 r 11 regulation
as well as laymen, could not successfully contest of com .
the claim. Both States were deeply interested in merce.
Chesapeake Bay, into which the Potomac empties,
and which extends far into Maryland and dis-
charges its waters through Virginia into the
Atlantic Ocean. Then, too, Pennsylvania, ad-
joining Maryland on the north and almost touch-
ing the bay into which the Susquehanna River
flows, and Delaware, to the east of Maryland,
were interested in any regulation of commerce
upon the bay and its tributaries. These familiar
facts are but a few of the long array of commer-
cial difficulties destined to influence the course of
our national growth.
The immediate result was that in 1785 a
meeting at Alexandria in Virginia, of delegates
from Maryland and Virginia, artfully entertained Meeting
at Mount Vernon by the great Washington, led ^£}**~
to the suggestion that the States generally should
be invited to consider in common the regulation
of navigation and commerce in their common in-
terest.
In May of the same year the legislature of Mas-
sachusetts, upon the recommendation of Gover-
nor Bowdoin, passed a resolution declaring inade-
1 8 Madison s Debates in Federal Convention
quate the Articles of Confederation and calling
for a Convention from all the States. But the
resolution never reached the Congress.
In the early days of 1786, the legislature of
Virginia therefore appointed commissioners, of
whom Mr. Madison was one, to consider how far
a uniform system of interstate commercial regu-
lations was " necessary to their common interest
and their permanent harmony," directing them
to invite the several States to send delegates to a
convention for that purpose. The first Monday
of September was agreed upon as the time, and
At the little town of Annapolis, then and now the
Annapolis. ca pital of Maryland, as the place of meeting.
Nine accepted the invitation and appointed
delegates, but only the representatives of five of
the States appeared. Under these circumstances
it did not seem worth while for a part to devise
regulations for the whole. The delegates there-
fore wisely contented themselves with a report
of the meeting to the States, signed by John Dick-
inson as chairman, but drafted by the deft hand
of Alexander Hamilton. 1 They sent a copy to
the Congress for its information and action, and
recommended the appointment of delegates of
the States to meet in Philadelphia, on the second
Monday in May of the ensuing year, in order
to revise the articles of Confederation. Virginia
put itself in touch with the States, urging them
to comply with the recommendation.
The Congress ultimately approved the plan, in-
1 Documentary History of the Constitution, vol. i., pp. 1-5.
And a More Perfect Society of Nations 19
fluenced, no doubt, by acts of rebellion in Massa-
chusetts against the government of that State and
by the fear of similar outbreaks in other States;
and the Convention was officially called by the
Congress, as stated in its resolution of February
21, 1787, for
the sole and express purpose of revising the
Articles of Confederation, and reporting to the
Congress and the several legislatures, such alter- Call of
ations and provisions therein, as shall, when the 9 on '
agreed to in Congress, and confirmed by the ventlon -
States, render the Federal Constitution adequate
to the exigencies of Government, and the preser-
vation of the Union. 1
All of the thirteen States, with the exception
of the pigmy commonwealth of Rhode Island
and Providence Plantations, appointed delegates
to meet at the time and the place fixed for the
meeting, and, as the world knows, the Articles of
Confederation were revised with a vengeance by
throwing them overboard the Ship of State and
by drafting a scheme of government adequate to
the needs of the States, because based upon their
experience both as colonies and as States.
Accomplishing the Impossible
The second Monday of May, 1787, fell upon
the 14th, but on that day only two delegations ap-
peared at Philadelphia, the Pennsylvanian, which
could not well fail to be on hand, and the Vir-
1 Documentary History of the Constitution, vol. i., p. 8.
20 Madison's Debates in Federal Convention
ginian group with the punctual Washington at
The its head. It was not until Friday, the 25th of
task° SSlble ^ e montn > when the delegates of seven States,
that is, a majority of the thirteen then forming
the Union, appeared and convened in the very
city and stately building where eleven years pre-
viously the Declaration of Independence had
been approved, proclaimed, and signed. The
place and the hour were big with possibilities for
the future. What was to take place? Chastened
by the experience of eleven years of anxiety and
apprehension, what would the conference bring
forth? Could the States possibly create and main-
tain a more perfect union based upon the separa-
tion of the powers of both, and upon the recogni-
tion of the interdependence of each? It seemed
impossible. Nevertheless the fifty-five delegates
to the Convention, of which Thomas Jefferson
said with pardonable exaggeration, " it is really
an assembly of demigods " 1 — accomplished the
impossible by good will, concession, and com-
promise. And yet, three of the members present
at the signing of the Constitution, Messrs. Mason
and Randolph of Virginia, and Mr. Gerry of
Massachusetts, refused to add their names to those
of their thirty-nine colleagues, although that doc-
ument owed very much to their labors.
This Federal Convention was, as already stated,
an international conference, and as such it would
1 Letter of Thomas Jefferson, dated Paris, Aug. 30, 1787, addressed
to John Adams. {Documentary History of the Constitution, vol. iv.,
p. 266.)
And a More Perfect Society of Nations 21
have been opened in person by the venerable Ben-
jamin Franklin, then President of the common-
wealth of Pennsylvania, who " alone could have
been thought of as a competitor " and who would
have proposed George Washington, of Virginia,
as its President, had not, as Mr. Madison informs
us, " the state of the weather and of his health
confined " the illustrious Pennsylvanian " to his
house." * As it was, Robert Morris, senior mem-
ber of the Pennsylvanian delegation, in his ab-
sence, made the motion, seconded by John Rut-
ledge of South Carolina, and, upon ballot taken,
General Washington was found to be unanimously
elected, as he had been chosen Commander in
Chief of the Revolutionary Army by the Con-
gress, and as he was twice later, and because of President
the Convention, to be elected President of the gecretar
United States. After a few words from the
newly elected President, modestly disclaiming
merit on his part, as was his wont, and as
appears to be also the custom in international
conferences, Mr. Wilson, next in rank in the
Pennsylvanian delegation, rose and proposed for
Secretary, William Temple Franklin, grandson of
the great doctor; then " Colonel," as Mr. Madi-
son calls him, but Alexander Hamilton as we of
today would say, proposed a companion in arms,
one Major William Jackson. A ballot was taken,
the States divided five to two against the grand-
son, and the Major was declared elected — a bad
choice, be it said, with due deference to the
1 Documentary History of the Constitution, vol. iii., p. 9.
22 Madison's Debates in Federal Convention
Creden-
tials.
Commit-
tee on
rules and
orders.
Vote by
States.
Colonel, his sponsor, and the five States that
voted for him. For if we are to judge by the
Major's journal, as we must in the absence of
the notes of the proceedings which he claims
to have taken, but which, mislaid or lost, have
disappeared without a trace of their existence, the
official Secretary's services left not a little to be
desired.
The Convention now had an efficient President
and a titular Secretary. The credentials of the
delegates of the several States and the instructions
contained in them, were read, whereupon the
Convention was organized and in session. Other
details were promptly arranged. A committee
was appointed " to prepare standing rules and
orders," and the Convention adjourned from Fri-
day, the 25th, until Monday, the 28th, to allow
the committee to meet and prepare its report At
the session of the 28th the committee reported
and, with an amendment and an addition, the rules
were adopted by virtue whereof each State had,
as under the Articles of Confederation, one vote
irrespective of the number of the delegates, and
the votes of the States were recorded, not the
names of the delegates casting them. "A house
to do business," to quote Mr. Madison's lan-
guage, consisted " of the deputies of not less than
seven States"; all questions were to "be decided
by the greater number of these which shall be
fully represented," but a smaller number could
adjourn from day to day. 1
1 Documentary History of the Constitution, vol. Hi., p. n.
And a More Perfect Society of Nations 23
Committees were to be elected by ballot, and Election
1 •, t s^ • .of com-
they were not to sit while the Convention was in m i t tees b>
session, as the attendance of all at the general ballot -
meetings was deemed desirable. "'It was further
provided that nothing spoken was to be printed
or otherwise published or communicated without
leave.^Such were the main features of the Con-
vention's organization.
These are, it will be observed, the methods Signifi-
of an international conference, with the differ- societ^°of
ences only that nominations were to be made and Nations,
decided by ballot, not by a silence that is held
to betoken assent, and that resolutions or pro-
posals were to be adopted by a majority instead
of by the unanimous vote of all the States. But
it is not unreasonable to believe that future in-
ternational conferences may, both as to election by
ballot and to adoption by majority, profit by the
experience of the Federal Convention, which is
to date the only international conference whose
labors have stood the test of time and of criti-
cism. This seems probable because self-respect-
ing States can not be expected to have the larger
States organize the conference by prearrange -
ment without consulting the delegates of the less
powerful nations, and because it may prove unde-
sirable to continue the unanimity rule when no
State is bound by its vote in conference or even by
the vote of the conference except as the state
signifies its own ratification after formal sub-
mission of the project for separate approval or
disapproval. But the point to be borne in mind
24 Madison s Debates in Federal Convention
— a theme to which reference will frequently be
made — is that the Federal Convention of 1787 is
an abiding object lesson for the student of inter-
national conferences.
General Interests
The Articles of Confederation provided for a
Union of the States, with a Congress as its legis-
lative and executive organs, so far as the States
divested themselves of and granted legislative
functions to the United States. No judiciary, as
such, was created, although the Congress of the
Confederation was vested with the power of
"appointing courts for the trial of piracies and
felonies committed on the high seas and establish-
The more ing courts for receiving and determining finally
S robiems a PP ea ls m a ^ cases of captures," with the power
presented of appointing temporary tribunals or commissions
Articles " m a ^ disputes and differences now subsisting or
ofConfed- that hereafter may arise between two or more
States concerning boundary jurisdiction or any
other cause whatever," including " all controver-
sies concerning the private right of soil claimed
under different grants of two or more States." 1
How should the conference readapt the judiciary
to the new needs of the new day?
But there were other and not less serious diffi-
culties. In the Continental Congress each State
could be represented by not less than two, nor
more than seven delegates, subject to recall, and
1 Articles of Confederation, Article IX.
And a More Perfect Society of Nations 25
who were to receive such compensation for their
services as their States might be pleased to allow.
But, irrespective of the number of delegates, each
State was to have, and actually did have only one
vote in the Congress, a provision galling upon the
large States, but the price of confederation, as it
was to be the price of the more perfect union of
the Constitution. The Articles, as a purely dip-
lomatic document, acted upon the States, not
upon their citizens, and could only be changed or
amended by unanimous consent. Less important
measures required the vote of nine States, and
during the recess of the Congress a committee of
the States sat to conduct affairs, with power to
transact such business as nine States might author-
ize, but not to do anything " for the exercise of
which, by the articles of confederation, the voice
of nine States in the Congress of the United States
assembled is requisite." 1
But still more serious in the exercise of the
powers specifically granted to the United States
in Congress assembled, of which the States had ^p^™*
divested themselves, the Congress could only central
recommend as it had no way of compelling the authority.
States to comply. It could not disregard the
State and lay its hand upon the citizen, as in a
national form of government. The Congress was
authorized to enter into treaties with foreign
countries, the States renouncing in behalf of " the
firm league of friendship with each other " 2 the
1 Articles of Confederation, Article X.
- Articles of Confederation, Article III.
26 Madison's Debates in Federal Convention
exercise of this right, possessed by them as sover-
eign, free and independent States, 1 but the Con-
gress could not enforce the observance of the
treaties; the States renounced the right to form
treaties, alliances or agreements between them-
selves, but if they did the Congress was helpless
to undo them; the Congress could determine the
quota of troops to be furnished by each State
which might or might not comply, without any
power on the part of the Congress other than of
persuasion arising from the needs of the occasion.
The Congress could determine the amount of
revenue to be raised for general purposes to be
" supplied by the several States, in proportion to
the value of all land within each State, granted
to or surveyed for any person, as such land and
the buildings and improvements thereon"; but,
as the taxes for paying the proportions thus
determined were to "be laid and levied by the
authority and direction of the Legislatures of
the several States," it is evident that the revenue
of the United States would, in last resort, depend
upon the pleasure of the several States. 2 Attempts
to change the basis of liability for quotas or
taxes from the value of land to the num-
ber of inhabitants or citizens, to raise a
revenue by duties upon imports, and to regulate
commerce between and among the States, failed
because of the inability in each case to obtain
the unanimous consent of the several States.
1 Articles of Confederation, Article II.
2 Articles of Confederation, Article VIII.
And a More Perfect Society of Nations 27
Without pursuing the subject further it is
obvious that the conference must endeavor to
grant to the general government the means to obvious
make its limited powers effective within the "eeded 8
terms of the grants. The more perfect union
would thus be empowered to raise the revenue
needed to carry on the business of government, to
regulate navigation and commerce. Besides,
means must be devised either for coercing the
States, or for allowing the general government to
reach the citizens of the States directly, without
the intervention or agency of the State. In
other words, some method for dealing to the
extent of its authority with citizens bound by law
and subject to suit, instead of with States making
law but immune from process, was necessary for
the central government. The only other recourse
would be war which, as Mr. Madison justly said,
would abrogate the treaty, compact or agreement.
It was further obvious that in framing a new
government for such of the several States as might
be minded to ratify it, the delegates would natur-
ally draw upon the experience which the States
had had in constitution-making before and since
the Declaration of Independence. The govern-
ment of the perfected union would probably con-
sist of a legislature, of an executive and of a
judiciary, authorized to exercise the powers to
the extent of the constitutional grant but not
beyond. This was particularly likely because of
the threefold division of power as embodied in
the Virginian Bill of Rights, antedating the
28 Madison s Debates in Federal Convention
Declaration of Independence and followed by
the other States, and also because the movement
to amend the Articles of Confederation came
from Virginia. Furthermore, Virginia's great
citizen was president of the Convention and its
delegation was the most influential delegation on
the floor of the " House ". It was also to be
expected that the judiciary would play a conspic-
uous role in any scheme of government which the
delegates might devise, for without a central
judiciary every treaty might conceivably receive
thirteen different interpretations, as the treaty-
was the law of each of the States and subject as
such to interpretation by the court of each State.
Separate coordinate State courts might present
the spectacle of any one act of the general legis-
lature, binding the State and its citizens, being
interpreted and applied in thirteen different ways.
Again it was certain that the States styled
" sovereign, free and independent " in the Arti-
cles of Confederation would only consent to the
renunciation of specified, enumerated powers of
a general nature, belonging more appropriately
to the general government than to any State.
Such a limited renunciation in the common inter-
est of the several States, rather than in the interest
of any one or of any group thereof, seemed neces-
sary. But it was apparent throughout that they
intended to reserve or retain for themselves all
powers which they did not consent to grant to
the government of the Union. Further it was
to be anticipated that the Constitution would be
And a More Perfect Society of Nations 29
subject to amendment, as experience had shown
the necessity of amending the Articles, and that
the Amendments, not too easily adopted, would
yet be made by less than the unanimous vote of
the States. And, finally, it must have been fore-
seen that the struggle begun in Congress between
the large and the small States, the small claiming
equality of right with the large, would make its
appearance in the Convention, and that the States
or sections would stand out for their special or
sectional interests; that navigation and commerce
in the eastern carrying and trading States, and
that the slave trade and property in slaves in the
Southern States for example, would all demand
attention. In other words, it was in the nature of
things that the Constitution, if drafted, would
have to be a creature of concessions in the rela-
tions of the large and the small, and of com-
promise in the matter of local or sectional inter-
ests of the peoples of the States.
But before taking up the proceedings of the
conference on these various matters, it is well to
premise that, on the very day on which the con-
ference resolved itself into a Committee of the
Whole, May 30, 1787, the day after Mr. Randolph
had "opened the main business" with his
address on behalf of the Virginian delegation
and in justification of its plan, the delegates made J he * old
J , . . decision.
the bold decision of postponing the proposition to
amend the Articles of Confederation by adopting
the motion " that a national Government ought to
be established, consisting of a supreme legislative,
30 Madison's Debates in Federal Convention
executive & judiciary." In the light of the
resolution adopted by the Congress limiting the
Convention to a revision of the Articles of Con-
federation, and in view of the instructions of the
several States to their respective delegates to the
same effect, this was indeed a decision bold as it
was momentous. It is easy to justify this act of
the Convention from the technical point of view,
in that its draft of a Constitution was, in form
and in effect, merely a recommendation to the
States, to be accepted or rejected by them in the
exercise of their sovereign discretion; but perhaps
the best justification is that of President Wash-
ington, who remarked: " If to please the people,
we offer what we ourselves disapprove, how can
we afterward defend our work? " x
This action of the Convention could only mean
that the Union of the States was indeed to have
a government adequate to its needs. It should be
said, however, in this connection, that, in the
course of subsequent proceedings, the word " na-
tional " was unanimously struck from the phrase
"national government" on the motion of Mr.
Ellsworth of Connecticut that the government to
be established should be not a national govern-
ment, as originally proposed by Mr. Randolph
and approved by the partizans of what was then
called consolidation, but " a government of the
United States," to consist of the threefold divi-
1 Gouverneur Morris, An oration upon the Death of General Wash-
ington p. 21; delivered in New York, December 31, 1799 (Farrand,
Records of the Federal Convention, vol. iii., 382.)
And a More Perfect Society of Nations 31
sion, which, in Mr. Ellsworth's view and ap-
parently in that of the Convention, was the
proper title. But by the terms of the resolution
adopted by the conference at the first session of
the Committee of the Whole, it was apparent that
the delegates proposed to ignore their " instruc-
tions " and to " revise " the Articles of Confed-
eration by supplanting them.
The matter of the equality of States came up
before the opening of the Convention and was only
got out of the way by concession from both sides
in July. The questions involving local interests
were settled only in the closing days of the con-
ference. These two sets of difficulties, seemingly
insurmountable then, are still peculiarly signifi-
cant to international conferences. Agreement
on all other matters, essential to the organization
of the government of the Union, was found to be
comparatively easy on the principle of give and
take, a principle which is also the very life and
breath of any international conference. The two
issues, equality and local interests, were so acute
that they will be considered in some detail before
proceeding to an analysis and appreciation of
the international document which we call the
Constitution.
Mr. Madison tells us somewhat casually, and in
a note of later date which he appended to the
completed manuscript of the Session of May 28th, Equality
that " previous to the arrival of a majority of the
States, the rule by which they ought to vote
in the Convention had been made a subject
32 Madison's Debates in Federal Convention
of conversation among the members present 1 '. 1
Gouverneur Morris, Robert Morris, and others
from Pennsylvania — Massachusetts, Pennsyl-
vania, and Virginia were then the large
States — were of the opinion that they should
unite in denying an equal vote " as unreason-
able, and as enabling the small States to
negative every good system of Government," pro-
posed, of course, by the large for the benefit of
the small States, " which must in the nature of
things," according to the views of the large States,
Large " be founded on a violation of that equality."
small ^- r - Madison was strongly in favor of the equal
states. rights of the great States, as delegates of great
States usually are, and believed, no doubt hon-
estly, that the claim of the small States to an
equality of vote was preposterous, much as Bishop
Horsley was pleased to assert that the only inter-
est the people had in laws was " to obey them." 2
But he recalled the inability of the Continental
Congress to adopt any other principle than that
of equality in the matter of representation in the
very Articles which the conference was called to
amend.
At least Messrs. Washington and Madison, of
the Virginian delegation, were practical, hard-
headed men, and they were set upon getting the
most effective general government to be had,
1 Documentary History of the Constitution, vol. iii., p. 10, footnote.
2 "Dr. Horsley, Bishop of Rochester, 'did not know what the
mass of the people in any country had to do with the laws, but to
obey them.'" (Sir Thomas Erskine May, Constitutional History of
England, Holland's edition, 1912, vol. ii., p. 55.)
And a More Perfect Society of Nations 33
without breaking up the Convention at the out-
set. They apparently possessed the hope that
intimate association with the delegates of the
larger States would impress the other delegates
with their superior wisdom and reasonableness.
However that may be, " the members from Vir-
ginia," Mr. Madison says, " conceiving that such
an attempt might beget fatal altercations between
the large & small States, and that it would be
easier to prevail on the latter, in the course of the
deliberations, to give up their equality for the
sake of an effective Government, than on tak-
ing the field of discussion, to disarm themselves
of the right & thereby throw themselves on the
mercy of the large States, discountenanced &
stifled the project." 1
The Virginian plan of taking the little ones
in hand and bringing them to reason did not and
could not work, as the small States, like the large, The basis
were only willing to renounce a right in the inter- Nation 1 " 1 "
est of the whole, not in the interest of any group
other than their own, and then only when the
renunciation seemed to them " safe," of which
each of the States was to judge.
This was very bluntly expressed during the grill-
ing process to which the small were put by the
large States, which could neither be considered
their elders nor their betters, and it is recorded by
Mr. Madison, whose honesty as a reporter, be it
again said, is even more astonishing than his skill,
in the summary of his long and comprehensive
1 Documentary History of the Constitution, vol. iii., p. 10, footnote.
34 Madison's Debates in Federal Convention
address in the session of June 19th, which he no
doubt hoped would " prevail " upon the small
States, " in the course of the deliberations, to give
up their equality for the sake of an effective Gov-
ernment." Mr. Madison, as reported in his
Notes, said that " the great difficulty lies in the
affair of Representation; and if this could be
adjusted, all others would be surmountable." x
Nothing could be truer, as the event amply
demonstrated. Mr. Madison then continued:
" It was admitted by both the gentlemen from N.
Jersey [Mr. Brearly and Mr. Paterson] that it
would not be just to allow Virga. which was 16
times as large as Delaware an equal vote only."
Safe." In the abstract they may have been right, but
the admission did not show any marked conver-
sion to the " reasonable " point of view of the
large States, inasmuch as, according to Mr. Mad-
ison, " their language was that it would not be
safe for Delaware to allow Virg* 16 times as
many votes." 3
That was the crux of the question and the solu-
tion was brutally stated by Mr. or General Pinck-
ney, for there were two delegates of that name
from South Carolina, when, in the session of
June 6th, one or the other of them said — Mr.
Madison ascribing the remark to the Mister, Mr.
Yates to the General — : " The whole comes to this
. . . Give N. Jersey an equal vote, and she will
1 Documentary History of the Constitution, vol. Hi., p. 160.
2 Documentary History of the Constitution, vol. ill-, p. 161.
3 Documentary History of the Constitution, vol. iii., p. 161.
And a More Perfect Society of Nations 35
dismiss her scruples, and concur in the Nat-
system." 1
The Convention having come to a standstill — Commit-
" We are now at a full stop," to use the homely }< e £ ™
but expressive language of Mr. Sherman 2 of Con- promise.'
necticut — and in response to a general feeling
that " Something must be done, or we shall dis-
appoint not only America, but the whole world,"
to quote Mr. Gerry 3 of Massachusetts, the great
and good General Pinckney proposed, at the very
same session of July 2d, in which these remarks
had been made, but before they were uttered, that
" a Committee ... be appointed to devise &
report some compromise," to consist of a member
from each of the eleven States represented, as two
of the three delegates from New York had with-
drawn, and the delegates from New Hampshire,
although appointed, had not yet arrived. 4
There was a way out, and it was found not by
any one, but by the collective wisdom of the con-
ference, as so often happens. To Mr. Madison
and to many the question seemed to be as he had
put it in the session of June 20th:
1 Documentary History of the Constitution, vol. iii., p. 136.
It is immaterial whether Mr. Pinckney or Mr. C. C. Pinckney — that
is to say, the General — made the above remark, and it is only noted
in passing as showing Mr. Madison's accuracy in substance, if not
always in form. Thus Robert Yates, a delegate from New York,
recounts the incident: "Mr. C. C. Pinckney supposes that if N-Jersey
was indulged with one vote out of 13, she would have no objection
to a national government." (Secret Proceedings and Debates of the
Federal Convention, p. 127, published in 1821.)
" Documentary History of the Constitution, vol. iii., p. 264.
3 Documentary History of the Constitution, vol. iii., p. 269.
4 Documentary History of the Constitution, vol. iii., p. 264.
36 Madison's Debates in Federal Convention
In a word; the two extremes before us are a
perfect separation & a perfect incorporation, of
The two the 13 States. In the first case they would be
extremes, independent nations subject to no law, but the
law of nations. In the last, they would be mere
counties of one entire republic, subject to one
common law. 1
In fact, the compromise was very simple. As
the legislature was to consist of two branches the
The com- small States conceded representation proportioned
on Repre- to tne population of each State in the lower
sentation. branch of the legislature, called therefore the
House of Representatives; the larger States con-
ceded equality of representation in the upper
house, called the Senate, in which each State
should be represented by two members chosen by
the legislatures of each of the several States. In
the lower house, each State was to have a member
for each 40,000, later reduced to 30,000, inhabi-
tants. In the upper house, the members were to
vote individually, each casting a vote, not one
casting the two votes of the State, a device appar-
ently adopted to secure a vote for the purpose of
a quorum when one or other of the members of
a State might be absent. In addition, revenue
bills were to originate in the lower house, to be
accepted or rejected in the upper house, a pro-
vision ultimately modified so as to permit the
Senate to amend but not originate bills of this
nature. Inasmuch as a bill to become a law
had to pass both houses, the origin of the bill,
1 Documentary History of the Constitution, vol. Hi., p. 232.
And a More Perfect Society of Nations 37
which can be amended in either house out of
all resemblance to its former self, was a matter
of no great consequence and was so regarded
by the larger States. The truth is the com-
mittee and the conference were at their wits'
end to devise something that might seem to
be a fair concession from each side, as the
delegates of the big States were genuinely anxious
to save their faces and the delegates of the little
States were equally anxious to help them in the
process.
They were set, however, on preserving the
fruits of victory which they had literally snatched
from the very jaws of defeat. And, curiously, it
was Gouverneur Morris, who, on September 15th,
the last business day of the Convention, as the ses-
sion of the 17th was formal and restricted primar-
ily to signing, moved to render forever impossible
the inequality of the States under the Constitu-
tion of the United States. Again, it is the honest
Mr. Madison who thus reports the incident, not
unmixed perhaps with a touch of retrospective
irony, in connection with Article V, concerning
Amendments:
Mr. Gove r Morris moved to annex a further
proviso — " that no State, without its consent shall
be deprived of its equal suffrage in the Senate." r
And the big State man had the best of reasons
for his eleventh hour conversion to the views of
the little States. "This motion," Mr. Madison
1 Documentary History of the Constitution, vol. iii., p. 758.
38 Madison s Debates in Federal Convention
continues, " being dictated by the circulating
murmurs of the small States was agreed to with-
out debate, no one opposing it, or on the question,
saying no." 1
Local Interests
The leading and far-sighted statesmen of Vir-
ginia were against the slave trade, the existence
Slaves. and extension of slavery, George Mason and
Mr. Madison speaking eloquently against it. ■
George Washington, as is well known, emanci-
pated his slaves, and Thomas Jefferson never got
over the omission from his draft of the Decla-
ration of Independence of the denunciation of
King George for fastening slavery upon the
colonies.
' The Northern States were not in favor of
slavery. They would have preferred to see it
wiped out, and the attitude of the Middle States
was similar. The delegates of the Carolinas,
North and South, and Georgia, however, were
inexorable. They held that slaves were property
and that they should be recognized as such./
At the same time the slave was to figure as a
man in estimating population and in fixing the
basis of representation in the Congress, in accor-
dance with the resolution of the Continental
Congress in the proportion of five slaves to three
white men. But the delegates of the slave States
were not so anxious to have their slaves counted
1 Documentary History of the Constitution, vol. ill-, p. 758.
And a More Perfect Society of Nations 39
for purposes of direct taxation, although they
yielded the point.
jThe slave trade was to be allowed, or rather
it was not to be prohibited, until 1808. The
Southern States had already secured for their
citizens the return of their fugitive slaves who
should escape to a sister State in which slavery
might not exist, and they made what they were
pleased to consider a concession that a tax or
duty not exceeding ten dollars might be laid upon
each slave imported from the outside world.
This, however, was not enough; the three States
insisted upon their right to stock up with slaves
before the slave trade could be stopped, and they
further demanded that the right to do so be
secured by a proviso that the Constitution could
not be amended in that particular prior to 1808.
How did it happen that the will of the three
prevailed against the judgment, or at least the
preference, of the majority? In this way. The
Eastern States insisted that Congress should have
the power to pass laws affecting navigation and
commerce by a mere majority, whereas the
Southern farming States depending upon the
exportation of their agricultural products and the
importation of wares in return wished to require
a majority of two-thirds, as in the case of treaties,
for the validity of rules or regulations affecting
navigation or commerce. The Eastern States
were unwilling to confederate if the hands of
Congress were tied in this matter and in this
manner; the three Southern States were unwilling
40 Madison s Debates in Federal Convention
to confederate unless the slave trade were admit-
ted and safeguarded. Politics, they say, make
. queer bedfellows. The Eastern and the three
Southern States, willing to sacrifice the common
good if need be for their special interests, joined
forces with the result that the bargain, for such
it was, passed without a dissenting vote in the
matter of navigation. The bargain was, as will
presently appear, that Congress might pass laws
regulating navigation and commerce by a majority
vote, and that the slave trade might go on for
twenty years. The delegates of the Northern and
Middle States saw in the acceptance of the scheme
the price of union, and their grandchildren of the
North and the South paid the price of union in
the best blood and unspeakable treasure of both
sections.
The history of the miserable compromise faith-
fully chronicled by Mr. Madison should make
the good people of the North chary in criticism
The com- of the good people of the South. Thus Mr.
mercial Gorham of Massachusetts, President of the
motive. '
Continental Congress, and Chairman of the Com-
mittee of the Whole, when the Convention met
in this more informal manner, said in the session
of August 22d: "He desired it to be remem-
bered that the Eastern States had no motive to
Union but a commercial one. They were able
to protect themselves. They were not afraid of
external danger, and did not need the aid of the
Southern States." 1 Again, in the session of the
1 Documentary History of the Constitution, vol. Hi., p. 591.
And a More Perfect Society of Nations 41
29th of August, he recurred to the larger vote
to be required in legislation affecting navigation
and commerce, saying on this occasion:
If the Government is to be so fettered as to be
unable to relieve the Eastern States what motive
can they have to join in it, and thereby tie their
own hands from measures which they could other-
wise take for themselves. The Eastern States
were not led to strengthen the Union by fear for
their own safety. 1
On their side the delegates from the three South-
ern States did not prostrate themselves before their
brethren of the Northeast. In the session of Aug-
ust 22d, where Mr. Gorham had candidly avowed
that the Eastern " did not need the aid of the
Southern States," General Pinckney warned that
the delegates of South Carolina could not sign
the Constitution without adequate recognition and
protection of slavery, and that if they did, their
States would not ratify it, saying:
S. Carolina & Georgia cannot do without slaves.
As to Virginia she will gain by stopping the
importations. Her slaves will rise in value, &
she has more than she wants. It would be
unequal to require S. C. & Georgia to confederate
on such terms . . . He contended that the impor-
tation of slaves would be for the interest of the
whole Union. The more slaves, the more pro-
duce to employ the carrying trade; The more
consumption also, and the more of this, the more
of revenue for the common treasury. He admit-
1 Documentary History of the Constitution, vol. Hi., p. 641.
42 Madison's Debates in Federal Convention
Again
a Com-
promise.
ted it to be reasonable that slaves should be dutied
like other imports, but should consider a rejec-
tion of the clause as an exclusion of S. Carolina
from the Union. 1
S
The slave trade was therefore allowed, but in
the first instance not to extend beyond the year
1800. In the session of August 25th the General
moved to substitute 1808, thus prolonging the
trade for eight years. And Mr. Gorham, whose
mind was set on protecting the interest which his
section had in navigation and commerce, just as
General Pinckney was looking after the interests
of his, " 2 ded the motion " as reported by Mr.
Madison, who followed Mr. Gorham with a
statement in his own behalf that " Twenty years
will produce all the mischief that can be appre-
hended from the liberty to import slaves." 2 Still
the motion was carried: New Hampshire, Massa-
chusetts, Connecticut, Maryland, and the three
Southern States voting in its favor; New Jersey,
Pennsylvania, Delaware, Virginia, voting against
it, New York not being represented. 3
In the session of August 29th, in which Mr.
Gorham for the second time reminded the dele-
gates that " the Eastern States were not led to
strengthen the Union by fear for their own
safety," General Pinckney, speaking as the pleni-
potentiary of three Southern States, and they
could not have found an abler man, said:
1 Documentary History of the Constitution, vol. iii., p. 587.
2 Documentary History of the Constitution, vol. iii., p. 616.
3 Documentary History of the Constitution, vol. iii., p. 616.
And a More Perfect Society of Nations 43
It was the true interest of the S. States to have
no regulation of commerce; but considering the
loss brought on the commerce of the Eastern
States by the revolution, their liberal conduct
toward the views of South Carolina, and the
interest of the weak South" States, he thought it
proper that no fetters should be imposed on the
power of making commercial regulations; and
that his constituents, though prejudiced against the
Eastern States, would be reconciled to this liber-
ality — He had himself, he said, prejudices ag st
the Eastern States before he came here, but would
acknowledge that he had found them as liberal
and candid as any men whatever. 1
As Mr. Madison expressed it in after years,
in a note to this passage, " He [General Pinck-
ney] meant the permission to import slaves. An
understanding on the two subjects of navigation
and slavery, had taken place between those parts
of the Union, which explains the vote on the
Motion depending, as well as the language of Genl.
Pinckney & others." 2 When, therefore, the vote
was taken to strike out the requirement of a two-
thirds majority in navigation acts, it was agreed
to as Mr. Madison says, " nem. con ". 3 Of a
truth, a fellow interest as well as " a fellow feel-
ing makes us wondrous kind."
These two incidents have been dwelt upon at
considerable length to make it clear from the
experience of the Federal Convention that while
1 Documentary History of the Constitution, vol. iii., p. 637.
2 Documentary History of the Constitution, vol. iii., p. 637, footnote.
3 Documentary History of the Constitution, vol. iii., p. 642.
44 Madison's Debates in Federal Convention
men of good will could not successfully com-
promise irreconcilable interests involving funda-
mental conceptions of right or wrong, yet they
could reach a " working agreement " by mutual
concession in a fundamental principle such as
equality, not involving, as we would say today,
moral turpitude. There are some things that
majorities or unanimity can not do, as when Syd-
ney Smith wittily stumped the leader of the over-
whelming Tory majority in Parliament to take
advantage of its strength to repeal the Pytha-
gorean Theorem! Within this line, the nations
of the Society of Nations can go as far as the
States of the American Union in conference
assembled, and Mr. Madison's Notes will show
them how honest men, when not confronted by
wholly irreconcilable interests, such as black and
white, can " safely " afford to act.
Legislature, Executive, Judiciary
These two great questions out of the way, the
conference reached without serious difficulty a
workable agreement, as events have proved, upon
the legislative department with an upper and a
lower branch, upon specific matters concerning
the States as a whole, and upon laws binding the
United States, the States, and peoples within each
of them.
Powers to be granted to an executive called the
President, were agreed upon, such as the power
to execute the laws of the more perfect union. It
And a More Perfect Society of Nations 45
was easily agreed that he should be elected for a
period of years, the number of years giving rise
to much controversy. It was also agreed that
he be eligible to reelection by the people within
the States, responsible to them for the faithful
performance of the rights and duties of his office,
subject to impeachment in the Senate represent-
ing the States at the instance of the House of
Representatives, and removable upon trial under
the presidency of the Chief Justice of the Supreme
Court, if convicted by a two-thirds vote of the
Senators present. Under the Constitution, as we
all know, the President appoints certain officers
of the United States, subject to confirmation by
the Senate, conducts the foreign affairs of the
Union, receives diplomatic agents from foreign
countries, and negotiates treaties and conventions
with them subject to the advice and consent of
two-thirds of the Senators present.
In like manner there was no insurmountable
difficulty in creating a Supreme Court of the
Union, although there was considerable debate
in reaching an agreement that the Congress might
establish federal courts of first instance with an
appeal to the Supreme Court. It was urged that
all the States had courts, that it was therefore
unnecessary to create new and competing ones,
and that uniformity of interpretation of the Con-
stitution, of Acts of Congress, of treaties of the
United States, of constitutions and statutes of the
several States, would be adequately secured on
appeal to the Supreme Court about the advis-
46 Madison's Debates in Federal Convention
ability of whose creation there was neither doubt
nor dispute. Assuredly, the State courts could
have been utilized as suggested, but, as time has
demonstrated, the system of federal courts created
by the Congress and operating in every State
and Territory has worked well, and the de-
cisions of federal questions arising and corrected
by the Supreme Court whenever the necessity
arises.
International Significance of the States
of the Union
These last matters, however, are familiar and
of interest to the American, not necessarily to the
foreigner. But Mr. Madison's Notes contain
passages respecting the States, the Union of States,
the relation of the laws of the Union to those of
the several States, the judiciary, the nature of
judicial questions, and the role that a court of
Justice plays in this Union of States, and which
it can therefore play in the Society of Nations.
Such passages are of interest to American or
foreigner believing not merely in the possibility,
but in the absolute necessity, of international
Nation or organization. The international aspect of these
States.° things has been strangely overlooked because of
the tendency to regard the United States as a
unitary nation, instead of a union of States, more
perfect, indeed, than that of the Articles of Con-
federation, but nevertheless a union, for which the
people of the several States ordained and estab-
And a More Perfect Society of Nations 47
lished this Constitution of the United States, to
go no further than the Preamble to that venerable
and venerated instrument of government. These
phases of the subject will now be considered, for
which Mr. Madison's Notes can be and must be
taken as the first of texts and the most authentic
of sources.
That we may rightly group the relations of
the States to the Union let us consider again
what was to be done. Twelve States had met
by their delegates to create some form of Union
more perfect than that existing under the Articles
of Confederation, or to provide that Union with
the powers to make its maintenance worth while.
After the first day of the Convention the dele-
gates were trying to endow a new Union of their
own creation with a government, to carry out and
to exercise the sovereign powers which the several
States assembled in conference believed, as the Relation
result of their experience, could be taken from ° Q th * es
each of them and transferred to the government Union. I
of the Union. This government was to be and
still is the agent of the States for general purposes
to the extent of the sovereign powers granted to
it by the people of the several States. To this
extent the Union is sovereign. The sovereign
powers not granted, or which the States did not
renounce, were to be and still are reserved to the
several States. To remove any doubt on this
subject, two articles to be added to the Constitu-
tion were proposed in the first session of the first
Congress meeting under it, and, ratified by three-
48 Madison's Debates in Federal Convention
fourths of the legislatures of the States then form-
ing the Union, became an integral part of the
instrument. The first of the two Articles provides
that " The enumeration in the Constitution, of
certain rights, shall not be construed to deny or
disparage others retained by the people." The
second, that " The powers not delegated to the
United States by the Constitution, nor prohibited
by it to the States, are reserved to the States
respectively, or to the people."
We know that Mr. Madison approved of these
Articles because he proposed them to the Con-
gress, and because in the course of the debates
he said so. The term " people," used in these two
articles added to the Constitution, and contained
in the opening words of the Preamble to the
Constitution, means the people of the States, not
"The the people generally without reference to the
People." States. While this is the reason of the thing, we
can nevertheless invoke the highest authority for
it, if authority be needed, for in delivering the
unanimous opinion of the Supreme Court of the
United States in the leading case, which is also
his masterpiece, of McCulloch v. Maryland (4
Wheaton, 316, 403), decided in 18 19, the greatest
of Chief Justices, John Marshall, said:
No political dreamer was ever wild enough
to think of breaking down the lines which sepa-
rate the States, and of compounding the American
people into one common mass.
The Chief Justice did not, however, leave the
matter here; he drew and stated the necessary con-
And a More Perfect Society of Nations 49
elusion of his thought and of his language, which
was, be it remembered, likewise the view of his
brethren, saying, " Of consequence, when they act,
they act in their States."
We therefore have on the one hand the Union
with its government of three branches, invested
with sovereign powers of a general nature, con-
ceived in the interest of the States as a whole, not
in the interest of any one or group thereof, and to
be exercised in the interest of all; and on the
other hand, the governments of the several States,
possessing and exercising the reserved sovereign
powers of the States, or those whereof they did
not renounce the exercise. Each, as Chief Justice
Marshall has finely said in the McCulloch case, Two
is sovereign within its proper sphere and neither J° e g er a "§ n "
sovereign within the proper sphere of the other, their
How were these two sovereignties to be kept relatlon -
in check, that is to say, each within its appro-
priate sphere? Mr. Madison and his closest
friends first thought by investing the Union with
the power to coerce the States to comply with
their duties, to establish a council of revision to
pass upon and to veto the acts of the States and of
the Federal Legislature, contrary to the proposed
Constitution. The discussion of these matters was
long and interesting, and the details are given, no
doubt faithfully, in his Notes by Mr. Madison,
who records his repeated attempts to achieve his
purpose in his own way, the repeated failures of
himself and friends, and the method which fin- J he
11 Supreme
ally and fortunately prevailed, apparently the L aw.
50 Madison s Debates in Federal Convention
only method fitted for States of the Union and
worthy of consideration by States of the Society
of Nations. It is one of the most striking
instances in which the conference was wiser than
its wisest members. How was it done? By the
simple expedient, as it seems to us of today, of
making the Constitution, the laws of Congress
made pursuant to it and the treaties of the United
States, the supreme law of the Union, as of each
of the States. In cases of controversy any or all
of them may as written documents be passed
upon, interpreted and applied, but only in a
specific case arising thereunder duly carried to
the court.
In the Virginian plan, undoubtedly drafted by
Madison and still existing in his handwriting,
the National Legislature was to be vested with the
powers of the Congress under the Articles of
Confederation and the right to legislate in cases
in which the separate States were incompetent or
involving the harmony of the Union.
In addition, and of especial importance for
present purposes, the proposed National Legis-
lature was to be possessed by the sixth resolution
with the power and the right " to negative all
laws passed by the several States, contravening
in the opinion of the National Legislature the
articles of Union; and to call forth the force of
the Union ag st any member of the Union failing
to fulfill its duty under the articles thereof ". *
1 Documentary History of the Constitution, vol. iii., p. 18.
And a More Perfect Society of Nations 51
The Society of Nations and the Union
of States
The eighth resolution of the Virginia plan
provided
that the Executive and a convenient number of
the National Judiciary, ought to compose a Coun-
cil of Revision with authority to examine every A Court,
act of a National Legislature before it shall
operate, and every act of a particular Legislature
before a Negative thereon shall be final; and
that the dissent of the said Council shall amount
to a rejection, unless the Act of the National
Legislature be again passed, or that of a particu-
lar Legislature be again negatived by the mem-
bers of each branch. x
There is no mention here of a court as such,
except that a number of judges were to act in an
advisory capacity upon measures which, if passed,
they might have to interpret and apply. But in
the course of the proceedings the court as such
made its appearance, replacing other provisions
which thereupon disappeared and are only to be
found in Mr. Madison's Notes, as they have
otherwise dropped entirely out of sight.
In the first place, the plan to coerce a State was Plan to
expressly discarded within two days of the intro- 5°^
duction of the plan itself. On the 30th of May, rejected
Mr. Mason, according to Mr. Madison, " observed
that the present confederation was not only defi-
1 Documentary History of the Constitution, vol. iii., pp. 18-19.
52 Madison s Debates in Federal Convention
cient in not providing for coercion & punishment
ag st delinquent States; but argued very cogently
that punishment could not in the nature of things
be executed on the States collectively, and there-
fore that such a Gov» was necessary as could
directly operate on individuals, and would punish
those only whose guilt required it." x This point
of view evidently impressed Mr. Madison, be-
cause, the day after, he himself proposed to post-
pone this clause when it was reached in the first
reading, saying, as reported by himself,
that the more he reflected on the use of force, the
more he doubted the practicability, the justice
Coercion and the efficacy of it when applied to people
, for . . collectively, and not individually. — A Union
only. 1 Ua S °f me States containing such an ingredient seemed
to provide for its own destruction. The use of
force ag st a State, would look more like a decla-
ration of war, than an infliction of punishment,
and would probably be considered by the party
attacked as a dissolution of all previous compacts
by which it might be bound. He hoped that such
a system would be framed as might render this
resource unnecessary, and moved that the clause
be postponed. 2
The motion was, as he says, " agreed to nem.
con ", 3 and the subject although subsequently
brought before the conference in the session of
June 15th, by the New Jersey plan, was not again
seriously considered although it was discussed.
1 Documentary History of the Constitution, vol. Hi., p. 22.
2 Documentary History of the Constitution, vol. iii., pp. 33-34.
3 Documentary History of the Constitution, vol. iii., p. 34.
And a More Perfect Society of Nations 53
It is indeed true that the Articles of Confeder-
ation operated upon the individual in what may
be considered minor matters, but in the essentials
of government only upon the States themselves.
The government of the perfected Union acts
upon individuals in essentials and only inci-
dentally, and in what may be considered ex-
ceptional cases, upon States. This was in
form as well as in fact a reversal of the old
order of things. This plan of Messrs. Mason and
Madison fortunately prevailed, and the system of
government ultimately adopted coerces the indi-
vidual and controls the State by a declaration of
the Supreme Court that the statute relied upon
is not a defense to an individual acting upon and
pleading it in justification of his action, as it is
inconsistent with the Constitution, and, therefore,
null and void. In the course of the session of
July 14th, Mr. Madison "called for a single
instance in which the Gen- 1 Gov* was not to oper-
ate on the people individually." * Apparently
none was given, as none is recorded in the notes,
and Mr. Madison continued, expressing a truth
so fundamental as to deserve to become an axiom
of political science, that " the practicability of
making laws, with coercive sanctions, for the
States as political bodies, had been exploded on
all hands." 2
1 Documentary History of the Constitution, vol. iii., p. 340.
In the 43d Number of The Federalist, which appeared on January
25, 1788, Mr. Madison recurred to this subject, and himself answered
the question to which no reply had been given on the floor of the
Convention.
2 Documentary History of the Constitution, vol. iii., p. 340.
54 Madison's Debates in Federal Convention
As already said, it was necessary to make of
the Constitution, of the laws of Congress enacted
in pursuance thereof, and of treaties, the supreme
law alike of the Union and of the States. To
accomplish this Mr. Madison left no stone un-
turned, and he completely succeeded, albeit after
Basis much difficulty. The expedient was exceedingly
Su reme simple and effective, and is sufficiently stated for
Law. present purposes in the 15th and last resolution
of the original Virginian plan, to the effect that
the amendments which shall be offered to the
Confederation by the Convention ought at a
proper time, or times, after the approbation of
Congress to be submitted to an assembly or as-
semblies of Representatives, recommended by the
several Legislatures to be expressly chosen by the
people, to consider & decide thereon. 1
The reasons for submitting the Constitution to
the conventions of the people to be held in each
of the States, specially called for this purpose,
composed of members chosen by the people, not
by the legislatures, were fully and frequently
stated by Mr. Madison during the course of the
debates on this question, which he regarded, and
rightly, as of fundamental importance. Of the
many statements of Madison and his followers,
three made' in three different periods of the Con-
vention will suffice. Early in its sessions,
Mr. Madison [as recorded by himself, under
date of June 5th] thought this provision essential.
The articles of Confed" themselves were defec-
1 Documentary History of the Constitution, vol. iii., p. 20.
And a More Perfect Society of Nations 55
tive in this respect, resting in many of the States
on the Legislative sanction only. Hence in con-
flicts between acts of the States, and of Cong-
especially where the former are of posterior date,
and the decision is to be made by State Tribunals,
an uncertainty must necessarily prevail, or rather
perhaps a certain decision in favor of State
authority. He suggested also that as far as the
articles of Union were to be considered as a
Treaty only of a particular sort, among the Gov-
ernments of Independent States, the doctrine
might be set up that a breach of any one article,
by any of the parties, absolved the other parties
from the whole obligation. For these reasons
as well as others he thought it indispensable that
the new Constitution should be ratified in the
most unexceptional form, and by the supreme
authority of the people themselves. 1
Later when the matter was up again in the
session of July 23rd,
Mr. Madison thought it clear that the Legis-
latures were incompetent to the proposed changes.
These changes would make essential inroads on
the State Constitutions, and it would be a novel
& dangerous doctrine that a Legislature could
change the constitution under which it held its
existence. There might indeed be some constitu-
tions within the Union, which had given a
power to the Legislature to concur in altera-
tions of the federal Compact. But there were
certainly some which had not; and in the case
of these, a ratification must of necessity be ob-
tained from the people. He considered the
difference between a system founded on the Legis-
1 Documentary History of the Constitution, vol. iii., pp. 65-66.
56 Madison s Debates in Federal Convention
latures only, and one founded on the people, to
be the true difference between a league or treaty,
and a Constitution. The former in point of
moral obligation might be as inviolable as the
latter. In point of political operation, there
were two important distinctions in favor of the
latter. 1. A law violating a treaty ratified by a
pre-existing law, might be respected by the
Judges as a law, though an unwise & perfidious
one. A law violating a constitution established
by the people themselves, would be considered
by the Judges as null & void. 2. The doctrine
laid down by the law of Nations in the case of
treaties is that a breach of any one article by
any of the parties, frees the other parties from
their engagements. In the case of a union of
people under one Constitution, the nature of the
pact has always been understood to exclude such
an interpretation. Comparing the two modes in
point of expediency he thought all the considera-
tions which recommended this Convention in
preference to Congress for proposing the reform
were in favor of State Conventions in preference
to the Legislatures for examining and adopt-
ing it. 1
Finally, in the session of August 31st,
Mr. Madison considered it best to require Con-
ventions; Among other reasons, for this, that the
powers given to the Gen- Gov* were being taken
from the State Gov* the Legislatures would be
more disinclined than conventions composed in
part at least of other men; and if disinclined,
they could devise modes apparently promoting,
but really thwarting the ratification. The diffi-
1 Documentary History of the Constitution, vol. iii., p. 411.
And a More Perfect Society of Nations 57
culty in Maryland was no greater than in other
States, where no mode of change was pointed out
by the Constitution, and all officers were under
oath to support it. The people were in fact,
the fountain of all power, and by resorting to
them, all difficulties were got over. They could
alter constitutions as they pleased. It was a
principle in the Bills of rights, that first prin-
ciples might be resorted to. 1
The meaning of all this is eminently clear and
free from reasonable doubt. By the Declaration
of Independence, the people were henceforward
to be regarded as the source of power. The pro-
posed Constitution for all the States was drafted
by the delegates of all the States. The constitu-
tion of each State dealing with questions arising
within and not extending beyond the confines of
the State, was drafted by delegates of the State.
The Constitution of the United States was to be Each
ratified by the people of each of the States in ** te c ^ h
order to bind each of the States. The State con- stitutions.
stitution was to be ratified only by the people of
that State. Each State was thus to have two con-
stitutions each ratified by the source of power,
namely the people.
If matters had stood here, each constitution,
National and State, would have been of equal
rank and validity. But all doubts are removed
by other considerations. The New Jersey plan,
proposed on June 15th by Mr. Paterson of that
State, in behalf of the smaller States, although
1 Documentary History of the Constitution, vol. iii., p. 656.
58 Madison's Debates in Federal Convention
rejected, contained an article which, amended
in form but adopted in substance, provided
that all Acts of the U. States in Cong- made by
virtue & in pursuance of the powers hereby &
by the articles of confederation vested in them,
and all Treaties made & ratified under the author-
ity of the U. States shall be the supreme law of
the respective States so far forth as those Acts
or Treaties shall relate to the said States or their
Citizens, and that the Judiciary of the several
States shall be bound thereby in their decisions,
any thing in the respective laws of the Individual
States to the contrary notwithstanding. 1
If we combine this clause, which as amended
forms the second edition of Article VI, of the
Supreme Constitution, with the first clause of the second
both ° f section of Article III, extending the judicial
states power of the United States " to all Cases, in Law
and Equity, arising under this Constitution, the
Laws of the United States, and Treaties made,
or which shall be made, under their Authority,"
we have the full demonstration of the problem.
The Constitution, Acts of Congress, and treaties
are not only the law, but the supreme law,
of the Union and of each of the several States,
and to be held as such by all courts, State and
Federal.
To the student of international conferences
interested to know how our forefathers of that
day settled the questions of revision, constitution-
ality, amendments and withdrawal from the
1 Documentary History of the Constitution, vol. iii., pp. 127-128.
and
Union.
And a More Perfect Society of Nations 59
Union, only a few words are necessary. In the Revision.
Constitution there is no place for a council of
revision, but the President was given the power
to veto an act of Congress unless passed again
by a two-thirds majority in each house. Its con- Constitu-
stitutionality is to be determined by the judges tlonaity -
not acting in an advisory capacity but as judges
in the decision of a given case arising under
the law. " A junction of the judiciary " would,
as John Dickinson aptly said in the session of
June 6th, involve " an improper mixture of
powers."- 1 It was natural that the State judges
should pass upon the question of repugnance to
the supreme law, especially because the Federal
Constitution was likewise the constitution of the
State, and the supreme law. Since the Constitu- Amend-
tion was adopted in its entirety by the people of
each of the several States, it was not only the
supreme law, but it could only be amended, and
the relations between the Union and the States
changed, by the legislatures or conventions of
three-fourths of the States, in accordance with
the Fifth Article. There is here, therefore, no
room for withdrawal, for the people of a State
could only change its relations to the Union
by the vote of three-fourths of the States. It Seces-
is difficult to see how the people of a State could
withdraw from their own Constitution, which
they themselves and in conjunction with the other
States had made their supreme law. Secession
could only be revolution.
1 Documentary History of the Constitution, vol. iii., p. 79.
sion.
Admission
of new
60 Madison's Debates in Federal Convention
While it is technically correct to say that the
Constitution was made by delegates of twelve
States, it was nevertheless true that its framers
contemplated that Rhode Island, which was not
represented, would consent to ratify it and thus
make the more perfect union coterminous with
the English colonies of the New World which
had proclaimed their independence on July 4,
1776, and whose recognition as States was ac-
knowledged by the mother country on September
3, 1783. It was foreseen, however, that the terri-
tory to the westward, which had been ceded to
the United States by the States claiming it, would
States. be peopled by the venturesome of the East or
their descendants; that this territory would be
subdivided, and, at the instance and request of
the inhabitants, admitted as States to the Union
of States upon what terms? As equals or in-
feriors? The far-sighted, of whom Mr. Mason,
Mr. Madison and Mr. Sherman were conspicuous
examples, urged their admission upon equality.
Gouverneur Morris, however, and some others,
wishing to maintain the supremacy of the Atlan-
tic seaboard at the expense of the inland and
Western States, opposed this, with the result that
the third section of the Fourth Article of the
Constitution merely provides that " New States
may be admitted by the Congress into this Union,"
without, however, stating that the admission was
to be upon terms of equality with the other mem-
bers. But the spirit if not the letter required it,
and in practice every State is admitted upon a
And a More Perfect Society of Nations 61
basis of equality, so that the latest newcomer
stands upon the same footing with the States that
gained their independence from Great Britain
and which made the Constitution of the United
States in the Federal Convention of 1787 a pos-
sibility. No other solution of the problem is con-
ceivable in this more perfect union of the west-
ern world; no other solution should be possible
in a perfected Society of Nations.
Relation of Justiciable to Political
Questions
The judicial power of the United States ex-
tends only to justiciable, not political questions,
as was pointed out by Mr. Madison in the ses-
sion of August 27th. He " doubted whether it
was not going too far to extend the jurisdiction
of the Court generally to cases arising Under the
Constitution & whether it ought not to be limited
to cases of a Judiciary Nature. The right of
expounding the Constitution in cases not of this
nature ought not to be given to that Depart-
ment." x And Mr. Madison was doubtless cor-
rect when he says it was " generally supposed
that the jurisdiction given was constructively
limited to cases of a Judiciary nature." 2 Such
was the view of the conference, such is the view
repeatedly expressed by the Supreme Court itself.
How the unconstitutionality of an act and the
1 Documentary History of the Constitution, vol. Hi., p. 626.
2 Documentary History of the Constitution, vol. Hi., p. 626.
62 Madison's Debates in Federal Convention
justiciable nature of a controversy are to be de-
termined are matters of such international im-
portance as well as of domestic concern that
they may well be examined with some care.
In regard to the first matter, it may be said
at once that the function of the court in cases
The involving the constitutionality of an act as under-
"utionaiity stood in the American Union is not recognized
of an act. elsewhere, although our method seems essential
to the success if not to the conception of a Fed-
eration. The English view, prevailing it is be-
lieved generally, except in the more perfect Union
of the United States, and in such Federations
as the Dominion of Canada and the Common-
wealth of Australia, is shortly stated by Mr.
Justice Willes, who, in speaking of an act of
Parliament and the course which an English
court of justice may take in reference to it, said,
in the case of Lee v. Bude and Torrington Junc-
tion Railway (Law Reports, 6 Common Pleas
Division, 576), decided in 1871:
I would observe, as to these Acts of Parlia-
ment, that they are the law of this land* and we
do not sit here as a court of appeal from parlia-
ment. It was once said — I think in Hobart 1 —
that, if an Act of Parliament were to create a
man judge in his own case, the Court might dis-
regard it. That dictum, however, stands as a
1 The case to which Mr. Justice Willes refers is, as stated in a note
to the opinion, that of Day v. Savadge (Hob. Art. 87), in which that
learned Judge is reported by himself to have said: "Even an Act of
Parliament made against natural equity, as, to make a man judge in
his own case, is void in itself; for, jura naturae sunt immutabilia, and
they are leges legum."
And a More Perfect Society of Nations 63
warning, rather than an authority to be followed.
We sit here as servants of the Queen and the
legislature. Are we to act as regents over what
is done by Parliament with the consent of the
Queen, lords, and commons? I deny that any
such authority exists. If an Act of Parliament
has been obtained improperly, it is for the legis-
lature to correct it by repealing it: but, so long
as it exists as law, the Courts are bound to obey
it. The proceedings here are judicial, not auto-
cratic, which they would be if we could make
laws instead of administering them.
But there was nevertheless English precedent
for the American way, with which the colonists
were familiar, and indeed there were some three
American precedents within the personal or pro-
fessional knowledge of the lawyer members of
the Convention.
It was a principle of the English common law
that an act of a corporation in excess of the grant
in its articles of incorporation was ultra vires,
and as such null and void; and it was also a
principle of the common law, that by-laws of a
corporation could not be valid and yet contrary
to the laws of England, without a statement by
the law-making power to that effect. It was
further a principle of the common law that the
king himself could not authorize a corporation
to pass a by-law contrary to the law of the realm.
The importance of these principles will appear
if it be noted that the colonies were bodies politic
and political corporations, and therefore any act
of a colonial assembly repugnant to the laws of
64 Madison's Debates in Federal Convention
England was null, void and of no effect. It
could be disallowed by the king in council, and a
decision of the colonial court based upon the law
could be reversed by the king in council. The
leading case on the subject was that of
Withrop v. Lechmere (7 Connecticut Colonial
Records, 571), decided in 1728, in which the
king in council held, upon appeal from a
Connecticut court, that a statute of that colony
modifying the course of inheritance con-
trary to the common law of England was
null and void, and the decisions of Connecti-
cut courts based upon it were accordingly re-
versed. The case was clear, as the charter of
Connecticut only authorized that body politic
"to Make, Ordain, and Establish all Manner of
Wholesome and Reasonable Laws, Statutes, Ordi-
nances, Directions, and. Instructions, not Contrary
to the Laws of this Realm, of England." The
Constitution of the Union and of each of the
several States was in these respects like the char-
ter of the colony.
There were, however, three American cases
laying down the same doctrine: Holmes v. Wal-
ton (4 American Historical Review, 456), de-
cided in 1780 by the Supreme Court of New Jer-
sey; Trevett v. Wee den (Coxe, Judicial Power
and Unconstitutional Legislation, 234), decided
in 1786 by the Supreme Court of Rhode Island,
and Bayard v. Singleton (1 Martin, N. C. 48).
In the first two of these cases a law of the legis-
lators was declared unconstitutional as contrary
And a More Perfect Society of Nations 65
to the constitution of the one, and the charter of
the other, for Rhode Island continued to live
until 1842 under the Royal Charter of 1663;
and in the third, the court of North Carolina not
only held a State statute contrary to the Consti-
tution to be null and void, but also declared the
Articles of Confederation to be the supreme law
of that State.
The great and leading case on the subject up-
holding this view is that of Marbury v. Madison
(1 Cranch, 137, 177-178, 180), decided in 1803,
in which Chief Justice Marshall, speaking for
the Supreme Court of the Union, declared an
Act of Congress unconstitutional as inconsistent
with the Constitution, saying:
Certainly all those who have framed written
constitutions contemplate them as forming the
fundamental and paramount law of the nation,
and consequently the theory of every such gov-
ernment must be, that an act of the legislature,
repugnant to the constitution, is void. This
theory is essentially attached to a written consti-
tution and is consequently to be considered, by
this court, as one of the fundamental principles
of our society. It is not, therefore, to be lost
sight of in the further consideration of this sub-
ject.
If an act of the legislature, repugnant to the
constitution, is void, does it, notwithstanding its
invalidity, bind the courts, and oblige them to
give it effect? Or, in other words, though it be
not law, does it constitute a rule as operative as
if it was a law? This would be to overthrow in
fact, what was established in theory; and would
66 Madison's Debates in Federal Convention
seem, at first view, an absurdity too gross to be
insisted on. It shall, however, receive a more
attentive consideration.
It is emphatically the province and duty of
the judicial department, to say what the law is.
Those who apply the rule to particular cases,
must of necessity expound and interpret that rule.
If two laws conflict with each other, the courts
must decide on the operation of each.
So if a law be in opposition to the constitu-
tion ; if both the law and the constitution apply to
a particular case, so that the court must either de-
cide that case conformably to the law, disregard-
ing the constitution; or conformably to the con-
stitution, disregarding the law; the court must
determine which of these conflicting rules gov-
erns the case. This is of the very essence of judi-
cial duty.
If then the courts are to regard the constitution;
and the constitution is superior to any ordinary
act of the legislature, the constitution,' and not
such ordinary act, must govern the case to which
they both apply . . .
It is also not entirely unworthy of observation,
that in declaring what shall be the supreme law
of the land, the constitution itself is first men-
tioned; and not the laws of the United States,
generally, but those only which shall be made
in pursuance of the constitution, have that rank.
If the judicial power only extends to judicial
and not to political cases, it becomes of importance
Difference to define the distinction between them. This the
judTcia" Supreme Court has done in a long line of cases,
and among which may be mentioned the following:
ca'ses! 03 Foster v. Neilson (2 Peters, 253), decided in
And a More Perfect Society of Nations 67
1829; Williams v. Suffolk Insurance Company (13
Peters, 415), decided in 1839; Luther v. Borden
(7 Howard, 1), decided in 1849; the Prize Cases
(2 Black, 635), decided in 1862; State of Missis-
sippi v. Johnson (4 Wallace, 475), decided in
1866; State of Georgia v. Stanton (6 Wallace,
50), decided in 1867, and Pacific Telephone
Company v. State of Oregon (223 U. S. 118),
decided in 191 2. With these cases at his disposal
the foreign as well as the American publicist can
readily appreciate the distinction, and it is there-
fore a confession of ignorance to maintain that
the distinction can not be laid down by a court
with precision. It is a manifestation of repug-
nance to judicial decision to contend that the
foreign government must determine this question
for itself on the ground that a court of justice
is incompetent in the premises.
But if a political question must always remain
political, and can not become justiciable so as
to fall within the domain of the judicial power, How
and thus within the jurisdiction of a court of political
, , . , , . questions
justice, the usefulness of an international court may
is indeed limited, although within its sphere it become
. . , . . judicial.
may justify its creation a thousand times over
by the decision of justiciable disputes between
nations. A political question may, however,
become justiciable. It is within the power of
any two nations to make it so between themselves.
It is therefore within the power of the nations
of the Society of Nations to make it so between
and among themselves. The Supreme Court of
68 Madison s Debates in Federal Convention
the United States has so held, and has stated the
method with the precision of the judge and the
vision of the statesman, in the case of The State
of Rhode Island v. The State of Massachusetts
(12 Peters, 657, 736-8), decided in 1838, in
which Mr. Justice Baldwin, delivering the opin-
ion of his brethren, said:
The founders of our government could not
but know, what has ever been, and is familiar
Mr. to every statesman and jurist, that all controver-
justice g - es between nations, are, in this sense, political,
Baldwin. , . ,. . , , . 7 .
and not judicial, as none but the sovereign can
settle them. In the declaration of independence,
the states assumed their equal station among the
powers of the earth, and asserted that they could
of right do, what other independent states could
do; "declare war, make peace, contract alli-
ances;" of consequence, to settle their contro-
versies with a foreign power, or among them-
selves, which no state, and no power could do for
them. They did contract an alliance with France,
in 1778; and with each other, in 1781 : the
object of both was to defend and secure their
asserted rights as states; but they surrendered
to congress, and its appointed Court, the right
and power of settling their mutual controversies;
thus making them judicial questions, whether they
arose on " boundary, jurisdiction, or any other
cause whatever." There is neither the authority
of law or reason for the position, that boundary
between nations or states, is, in its nature, any
more a political question, than any other sub-
ject on which they may contend. None can be
settled without war or treaty, which is by poli-
tical power; but under the old and new confed-
And a More Perfect Society of Nations 69
eracy they could and can be settled by a court
constituted by themselves, as their own substi-
tutes, authorized to do that for states, which
states alone could do before. We are thus pointed
to the true boundary line between political and
judicial power, and questions. A sovereign de-
cides by his own will, which is the supreme law
within his own boundary; 6 Peters 714; 9 Peters
748; a court, or judge, decides according to the
law prescribed by the sovereign power, and that
law is the rule for judgment. The submission by
the sovereigns, or states, to a court of law or
equity, of a controversy between them, without
prescribing any rule of decision, gives power to
decide according to the appropriate law of the
case; 11 Ves. 294; which depends on the sub-
ject matter, the source and nature of the claims
of the parties, and the law which governs them.
From the time of such submission, the question
ceases to be a political one, to be decided by the
sic volo, sic jubeo, of political power; it comes
to the court to be decided by its judgment, legal
discretion, and solemn consideration of the rules
of law appropriate to its nature as a judicial
question, depending on the exercise of judicial
power; as it is bound to act by known and settled
principles of national or municipal jurisprudence,
as the case requires. . . .
These considerations lead to the definition of
political and judicial power and questions; the
former is that which a sovereign or state exerts
by his or its own authority, as reprisal and con-
fiscation; 3 Ves. 429: the latter is that which is
granted to a court or judicial tribunal. So of
controversies between states; they are in their
nature political, when the sovereign or state re-
serves to itself the right of deciding on it;
7<3 Madison's Debates in Federal Convention
makes it the " subject of a treaty, to be settled
as between states independent," or " the founda-
tion of representations from state to state." This
is political equity, to be adjudged by the parties
themselves, as contradistinguished from judicial
equity, administered by a court of justice, decree-
ing the equum et bonum of the case, let who or
what be the parties before them.
From this remarkable utterance it is clear that
should the Society of Nations or any consider-
A lesson able number of the nations be minded to take the
Societ 6 ste P' lt wou ld not be a leap in the dark, nor would
Nations, it be even an experiment. The Philadelphia
Convention showed how easily the step may be
taken, and the Supreme Court has by the prac-
tice and procedure of a century in the matter
of controversies between States furnished the
precedents which men of good will may heed.
All of the nations do not need to agree to form
an international tribunal, for the American plan
of a more perfect Union was to go into effect
when nine of the States should ratify the Consti-
tution, and it is fundamental to bear in mind
that by the express language of the Constitution,
only those States were to be bound which did
so ratify it. Nor is it necessary, on the other
hand, that the nations form themselves into a
Union of States for all, or even for general pur-
poses, as States united for judicial settlement will
suffice for justiciable purposes. They merely
need to agree by treaty, convention, compact,
call it what you will, to submit their disputes,
And a More Perfect Society of Nations ji
heretofore unsettled by their diplomatic agents,
to a court of their own creation, and therefore
their agent for this purpose. In the impressive
language of Mr. Justice Baldwin the dispute
would be " settled by a court constituted by them-
selves, as their substitutes authorized to do that
for the States, which States alone could do be-
fore," according to the appropriate law of the
case, depending upon " the subject matter, the
source and nature of the claims of the parties,
and the law which governs them," and according
to " its judgment, legal discretion, and solemn
consideration of the rules of law appropriate
to its nature as a judicial question, depending on
the exercise of judicial power; as it is bound to
act by known and settled principles of national
or municipal jurisprudence as the case requires."
The illustration by which the learned justice
enforces his views is not only apt, but unanswer-
able, showing the vast extent and nature of the
domain already subjected to judicial settlement.
Thus he says:
It has never been contended that prize courts
of admiralty jurisdiction, or questions before
them, are not strictly judicial; they decide on
questions of war and peace, the law of nations,
treaties, and the municipal laws of the capturing
nation, by which alone they are constituted; a
fortiori, if such courts were constituted by a
solemn treaty between the State under whose
authority the capture was made, and the State
whose citizens or subjects suffer by the capture.
All nations submit to the jurisdiction of such
72 Madison's Debates in Federal Convention
courts over their subjects, and hold their final
decrees conclusive on rights of property. 6 Cr.
284-5.
What had been done in the matter of prize,
the framers of the Constitution did in other dis-
putes between States of a kind and nature to be
decided in a court of justice in accordance with
Mr. Justice Baldwin's views by the simple, prac-
ticable and highly successful expedient of extend-
ing the judicial power of the United States — or
if you please, of the Society of Nations, or of
the contracting parties — " to controversies between
two or more States," which because of this ex-
tension become " of a Judiciary nature," to use
Mr. Madison's expression, already quoted in an-
other connection.
Lest the process may seem too simple, or too
easy, it is wise to yield the floor again to Mr.
Justice Baldwin, who says in an earlier portion
of the opinion of the Supreme Court in the
Rhode Island and Massachusetts case (12 Peters,
654, 720) :
Those states, in their highest sovereign capacity,
in the convention of the people thereof; on whom,
junsdic- by the revolution, the prerogative of the crown,
tion by and the transcendent power of parliament de-
consent volved, in a plenitude unimpaired by any act, and
delegated controllable by no authority, 6 Wheat. 651; 8
authority. Wheat. 584, 88; adopted the constitution, by
which they respectively made to the United
States a grant of judiciary power over contro-
versies between two or more states. By the con-
And a More Perfect Society of Nations 73
stitution, it was ordained that this judicial power,
in cases where a state was a party, should be
exercised by this Court as one of original juris-
diction. The states waived their exemption from
judicial power, 6 Wheat. 378, 80, as sovereigns
by original and inherent right, by their own grant
of its exercise over themselves in such cases, but
which they would not grant to any inferior tri-
bunal. By this grant, this Court has acquired
jurisdiction over the parties in this cause, by their
own consent and delegated authority; as their
agent for executing the judicial power of the
United States in the cases specified.
Will the sovereign States of the Society of
Nations obstinately refuse to follow the path
beaten out and marked by the sovereign States
of the New World, which recognized that be-
tween diplomacy and war, which they renounced,
there is only war? The question is not what
existed before the meeting of the States in confer-
ence in Philadelphia, in the year of grace 1787.
It is no longer necessary to originate, it is only A light
necessary to follow, for the wise men of that day wox\&.
and generation and of that Convention made
State suable by State, and in the course of a
hundred years of litigation both the practice and
procedure to be followed are spread before the
nations, not figuratively as in an open book,
but literally in a series of books known as the
Reports of the Supreme Court of the United
States, which their rulers can purchase for a
few paltry dollars and master in their moments
of leisure to their enduring benefit between the
74 Madison s Debates in Federal Convention
maneuvers of their armies and the reviews of
their fleets.
The desire expressed by Richard Caswell, Gov-
ernor of the State of North Carolina, in a letter
dated July 26, 1787, addressed to Mr. R. D.
Spaight, a delegate of that State in attendance
upon the Convention, for " an independent Judi-
cial department to decide any contest that may
happen between the United States and individual
States & between one State and another," x has
been more than realized. State has appeared
against State in the Supreme Court of the States,
and the judges of that court have decided, after
argument of counsel and mature reflection on
their part, many a controversy which would have
been a cause for war if it had been between
disunited States, instead of between members of
united States.
As was to be expected, from the looseness with
which their charters were drawn, the boundaries
of the States gave rise to litigation in the Supreme
Court, just as they had given rise to dispute be-
tween the colonies, and were settled by the king
in council. There were eleven such disputes out-
standing between and among the States when
the government under the Constitution went into
effect. For a number of years thereafter, the
only controversies between the States in which the
jurisdiction of the Supreme Court was invoked
related to boundary, and the first final decision
1 North Carolina State Records, xx, 753; quoted from Farrand,
Records of the Federal Convention of 1787, vol. iii., p. 64.
And a More Perfect Society of Nations 75
in a case of this kind was rendered as late as
1846, between Rhode Island and Massachusetts,
which latter State, curiously enough, objected to
the jurisdiction of the court, which, however and
notwithstanding, decided in its favor. 1 As the
result of confidence in judicial decision, some
thirty-one of the forty-eight States now composing
the Union have been plaintiff or defendant at
one time or another in controversies between and
among them. The United States, itself, has
appeared at the bar of the Supreme Court, and
has filed its complaint against more than one of
these united States. From boundary disputes,
the jurisdiction of the court has been invoked
in cases of contract, in differences concerning
riparian right, in matters affecting the health
and well-being of their inhabitants; and in the
course of time State will doubtless appear against
State in every kind of a dispute arising between
them, which can be presented to a court, because
there is no limit to litigation between States recog-
nizing the principles of justice and willing to
conform to the rule of law.
The eighty-odd decisions of the Supreme Court
of the " several States," to use the language of
the conference, in controversies between them,
remove the question of the feasibility of such a
tribunal from the field of academic discussion,
making of it simply a concrete matter of worldly
and of political wisdom.
There is little in Madison's Notes on this " in-
1 State of Rhode Island v. State of Massachusetts, 4 Howard, 591.
The
Judiciary
in the
Consti-
tutional
Con-
vention.
76 Madison's Debates in Federal Convention
teresting matter " as it would have been called
by the framers of the Constitution. Every State
had the threefold division of sovereign powers.
Every State had its judiciary. That the Union
was to have one apparently went without say-
ing — a t least there is no evidence that this phase
of the subject was debated or that it even gave
rise to any difference of opinion. Indeed, there
is next to nothing on the matter of controversies
between States. Diplomacy had failed to settle
their many and difficult disputes, and war they
would not have, for they were unwilling like
Saturn to be devoured by their own offspring.
In colonial times disputes between the colonies
all independent of one another and all without
tribunals of their own to which they might defer
as of right their "Judiciary" cases, were, how-
ever, in default of a supreme court of the colonies
carried to the Privy Council in England, where
they were settled by that due process of law
which hears before it determines, and decides
according to the law of the case. Indeed, three
of the boundaries of Rhode Island — the fourth
is the ocean — have been fixed, two by judicial
decree of the Privy Council of colonial days, at
the instance of Rhode Island against Connecticut
and Massachusetts, 1 and one later under the more
perfect Union, by a decision of the Supreme
Court in a controversy between Rhode Island and
1 Colony of Rhode Island v. Colony of Connecticut (3 Acts of the
Privy Council, Colonial Series, 10), decided in 1727; Colony of Rhode
Island v. Colony of Massachusetts (3 Acts of the Privy Council,
Colonial Series, 436), decided in 1746.
And a More Perfect Society of Nations 77
Massachusetts. 1 The erstwhile colonists invested
the Congress under the Articles of Confedera-
tion with this portion of the jurisdiction for-
merly exercised by the Privy Council, and de-
vised a method of appointing commissioners for
the temporary courts, who were to decide " all
disputes and differences" then existing or after-
ward arising " between two or more States con-
cerning boundary, jurisdiction or any other cause
whatever." The principles of judicial procedure
were readily acceptable to the framers of the
Constitution because beyond the pale of contro-
versy.
In the Virginian plan the national judiciary
was to have jurisdiction of " questions which
may involve the national peace and harmony."
In section 3 of the Eleventh Article of the first
draft of the Constitution reported by the Com-
mittee of Detail on August 6th, the judicial power
of the United States was extended to " contro-
versies between two or more States," excepting
therefrom such as regarded " Territory or Juris-
diction." 2 These, as involving the sovereignty
of the States were, by the Ninth Article of the
draft, to be referred to the Senate, representing
the States as such, just as they were and for a
like reason referred to the Congress under the
Ninth of the Articles of Confederation. This
cause was taken up in the session of August 24th
1 State of Rhode Island v. State of Massachusetts (4 Howard, 591),
decided in 1846.
2 Documentary History of the Constitution, vol. iii., p. 454-
78 Madison 's Debates in Federal Convention
and was quickly disposed of, Mr. Rutledge of
South Carolina, soon to be appointed Chief Jus-
tice of the Supreme Court, saying, according to
Mr. Madison, that " this provision for deciding
controversies between the States was necessary
under the Confederation, but will be rendered
unnecessary by the National Judiciary now to
be established, and moved to strike it out." x Dr.
Johnson, a wise and able delegate and experienced
lawyer from Connecticut, who had tried and lost
the case of Connecticut against Pennsylvania, 2 the
one case tried by a temporary commission under
the Articles of Confederation, seconded the
motion, in which Mr. Sherman, likewise a
lawyer from Connecticut, " concurred." 3 Mr.
Williamson, a physician of North Carolina, had
his doubts it would seem, and favored " postpon-
ing instead of striking out, in order to consider
whether this might not be a good provision, in
cases where the Judiciary were interested or too
closely connected with the parties" 4 ; Mr. Gor-
ham, a merchant of Massachusetts, also " had
doubts as to striking out, the Judges might be
connected with the States being parties. He was
inclined to think the mode proposed in the clause
would be more satisfactory than to refer such
cases to the Judiciary." 5 Only New Hampshire,
North Carolina and Georgia voted for postpone-
1 Documentary History of the Constitution, vol. iii., p. 607.
2 131 U. S., Appendix, p. liv., decided in 1781.
3 Documentary History of the Constitution, vol. iii., p. 607.
4 Documentary History of the Constitution, vol. iii., p. 607.
6 Documentary History of the Constitution, vol. iii., p. 607.
And a More Perfect Society of Nations 79
merit; whereupon Mr. Wilson, a distinguished
lawyer of Pennsylvania, who had won the case
for his State in its controversy with Connecticut
in which Dr. Johnson had appeared for that
State against him, " urged the striking out, the
Judiciary being a better provision." x Only North
Carolina and Georgia stood by Mr. Gorham,
whose State voted against him, and the Supreme
Court of the Union was vested with jurisdiction
in controversies between the several States
thereof, with only a constructive exception of
those of " a judiciary nature " again to use Mr.
Madison's phrase.
There was, however, a further category of
controversies contained in the Articles of Con-
federation, but not submitted to the Court in the
first draft of the Constitution. This was discov-
ered by the keen and penetrating eye of Mr. Sher-
man, who proposed in the session of August 27th,
with the unanimous approval of the Convention,
to invest the court with " jurisdiction of causes
' between Citizens of the same State claiming
lands under grants of different States,' according
to the provision in the 9th art. of the Confed-
eration." 2
The Supreme Court therefore became the
legitimate successor of the Privy Council and
Congress, and because of this we are privileged to Again the
repeat, it offers the nations a model and a hope tional sig .
of judicial settlement of their controversies nifkance.
1 Documentary History of the Constitution, vol. Hi., p. 608.
2 Documentary History of the Constitution, vol. iii., p. 627.
80 Madison's Debates in Federal Convention
which, if they are to be got out of the way after
the breakdown of diplomacy, can only be settled
by war. If the nations only will, they may make
a union of any of their number for judicial settle-
ment, and that by simply a treaty, convention,
compact or agreement, creating the court, grant-
ing it jurisdiction, defining its procedure, to be
set in motion by the plaintiff, leaving the execu-
tion of the judgment as in the case of an arbitral
award or of a decision of our Supreme Court to
the good faith of the contracting parties, and it
is done. The example of the American States
shows the way to do it. The procedure of the
court of the several States shows the feasibility
of doing it. The agony of Europe shows that it
must be done if the blood and treasure of the
future are to be saved from the catastrophes of
the past.
And what is, after all, this more perfect Union
of the American States, whose formation Mr.
The more Madison records in his Notes, that it should be
perfect jjeld as an examp i e or as a model to the
union or r r . .
Society of Society of Nations? Let the Articles of Union
Nations. answer ma t it was ordained, as specifically set
forth in the Preamble, " to establish Justice,
insure domestic Tranquillity, provide for the
common defence, promote the general Welfare,
and secure the Blessings of Liberty to our-
selves and our Posterity." What the States
of the New World have done, the nations of
the Old World can afford to consider, even
although they be unwilling or find it impos-
And a More Perfect Society of Nations 81
sible to endow their union, society, association,
or league with such extensive powers or preroga-
tives.
The problem which faced the States faces the
nations. How can each of them divest itself of
certain sovereign powers to be used for the
common good of all, not in the interest of any
one, without merging the nations in a union in
which they shall become as provinces? Were
not the Americans of the several States one
people, it may be asked? Was not the union
made by the people as such, irrespective of
States, forming a nation with all the sovereign
powers of such, and in which the States are as
counties, or shires, departments or provinces
of a unitary nation? To this it may be briefly
said that the union is one of States; that the
word " nation " is not to be found in the Consti-
tution; that the people of the States, acting as
citizens of the States and within State lines, not
the people generally compounded as one mass,
created the more perfect union, as the Constitu-
tion says, and that the States which compose this
union are States of a composite nation, if the
term " nation " must be used in preference to
the language of the Constitution.
But however this may be, the nations do not
need to go so far as the States of the American
Union. They may prefer that the society of
which they are the component parts shall remain
a very loose union. But the framework is at
hand, for is not the Society of Nations already
82 Madison s Debates in Federal Convention
Certain a union which needs only to become conscious of
parallels. - tg ex i s t ence to be made more perfect? And
however many or few the powers granted by
the nations, it will assuredly, indeed inevitably,
be more limited than the more perfect union of
the American States, even though that was and
still is a limited union. Is not the Hague Peace
Conference something very much like a legislature
ad referendum — a body that drafts and proposes
projects for the nations to accept or reject? Is
not the so-called Permanent Court of Arbitration
something like the temporary commissions under
the Articles of Confederation and a first step
to a judiciary of the Society of Nations " accessi-
ble to all, in the midst of the independent
Powers "?
If some committee were thought desirable be-
tween the regular and stated meetings of the con-
ference, the so-called Permanent Administrative
Council would suffice, with such added functions
as experience should suggest, " composed," as it
is, " of the diplomatic representatives of the sig-
natory Powers accredited to The Hague and of
the Netherland Minister for Foreign Affairs " as
President," to be charged with the direction and
control of such business of the Union of Society
as the contracting Powers might consider it safe
to entrust to a council of this nature. But if the
Society of Nations be consciously reorganized or
strengthened, such limited powers as it may pos-
sess should operate upon the individual as in the
more perfect Union of the American States, by
And a More Perfect Society of Nations 83
giving the provisions of the Convention the force
of law, to be ratified if need be by the people
of the States, thus taxing a person, not a nation,
with the performance of a duty, or abstinence
from an act, instead of a State, as otherwise the
problem of coercing a country — that is to say,
war — might arise.
No State if possible, certainly no powerful one,
should be invested with the right or duty of
supervising or executing the terms of the agree-
ment of the nations. The success of the American
experiment is, it is believed, due in no small
measure to the fact that no State of the Union
is President thereof, and also to the fact that no
limited power of the union is placed under the
, ~ 1 Neither
guarantee or protection of any one State, such as nat i nai
Massachusetts, Pennsylvania, or Virginia, but in fj
• 1 • a federal.
a government of the Union, without territory of
its own other than a few square miles constituting
the District of Columbia, in which the govern-
ment of the Union lives, moves and has its being.
Inevitably or ordinarily the primus inter pares
ends by swallowing up its equals of the begin-
ning.
Of the nature of the Union, let Mr. Madison
speak, who had more to do with its making than
any one man, but whose opinion in any event
is of itself entitled to great and deserved weight.
In the thirty-eighth number of The Federalist, a.
series of papers written by Mr. Hamilton, Mr.
Madison and Mr. Jay, shortly after the adjourn-
ment of the Convention and in order to influence
84 Madison's Debates in Federal Convention
The
Preamble
and its
limita-
tions.
the States to ratify the Constitution, Mr. Madison
said :
The proposed Constitution, therefore, is, in
strictness, neither a national nor a federal Con-
stitution, but a composition of both. In its
foundation it is federal, not national; in the
sources from which the ordinary powers of the
government are drawn, it is partly federal and
partly national; in the operation of these powers,
it is national, not federal: in the extent of them,
again, it is federal, not national ; and, finally, in the
authoritative mode of introducing amendments,
it is neither wholly federal nor wholly national.
We Americans would like to think and to
express the thought, although it may seem im-
modest, perhaps even boastful, that the Consti-
tution of the more perfect Union has the virtue
and strength of each, with the vice and weakness
of neither.
Foreign students of our Constitution are apt to
be confused by the phraseology of the Pre-
amble to that instrument. The opening sentence
of, or Preamble to the Constitution is a
flourish of rhetoric due to a facile pen, not a
grant of power made by the States, which is only
conveyed in the body of the Constitution. When
the first draft thereof was reported in the session
of August 6th, the opening sentence and the First
Article, later wisely and happily compressed into
the Preamble, were thus worded:
We the people of the States of New Hampshire,
Massachusetts, Rhode-Island and Providence
And a More Perfect Society of Nations 85
Plantations, Connecticut, New- York, New-Jersey,
Pennsylvania, Delaware, Maryland, Virginia,
North-Carolina, South-Carolina, and Georgia, do
ordain, declare, and establish the following Con-
stitution for the Government of Ourselves and our
Posterity.
The stile of the Government shall be "The
United States of America ". x
Under date of August 7th, Mr. Madison
informs us that " the preamble of the Report was
agreed to nem. con. So were Art. I & II," = the
latter to the effect that the government was to
consist of a legislative, executive _and judicial
department. Without further discussion and with
no changes in the Preamble and First Article, the
Constitution as amended after weeks of debate
was submitted to a Committee on Style and
Arrangement, elected by ballot in the session of
September 8th, consisting " of M- Johnson, M'
Hamilton, M- Gov^ Morris, M^ Madison and M T -
King". 3
This was an excellent committee and the pres-
ence upon it of Mr. Madison — the only committee
of which he was a member — made it a certainty
that no change of style would affect the sense
of the document, with which he was more
familiar than any other member could be, if
only from his self-imposed duty as reporter.
The Convention adjourned Saturday, Septem-
ber 8th, shortly after the appointment of the
1 Documentary History of the Constitution, vol. ii
2 Documentary History of the Constitution, vol. ii
3 Documentary History of the Constitution, vol. ii
p. 444.
p. 458.
p. 710.
86 Madison s Debates in Federal Convention
committee, and met on Monday, the ioth, which
Messrs. Hamilton, King and Madison attended
and in whose proceedings they participated.
Messrs. Johnson and Gouverneur Morris were
either absent or failed to take part in the
proceedings; they were probably busied with
the " stile " and arrangement of the Constitu-
tion.
On Tuesday, the nth, the committee reported
the Constitution with the Preamble which
every schoolboy of the " Several States " knows
by heart. There was no debate on it. The dele-
gates probably were mightily pleased with it, as
Gouverneur Morris, who is responsible for the
style of the instrument, was an accomplished lit-
terateur and made of the Constitution a piece of
literature, just as Thomas Jefferson did with the
J^ lt " Declaration of Independence. But the Preamble
overcome betrays not merely the hand of the stylist. It
Preamble. met an ^ overcame a serious and embarrassing dif-
ficulty. The original draft of August 6th, and
the otherwise amended draft as submitted to the
Committee on Style and Arrangement, spoke in
the name and in behalf of the people of the States,
enumerated in their geographical order from
north to south, beginning with New Hampshire
and ending with Georgia. The headstrong little
commonwealth of Rhode Island and Providence
Plantations was included, in spite of the fact that
it had not sent delegates to the Convention and
might not ratify the Constitution. Fortunately,
this difficulty became immaterial for the purposes
And a More Perfect Society of Nations 87
of the Preamble by the simple expedient of insert-
ing the word " United " before " States " and
omitting the names of the States from the balance,
so that instead of reading, " We, the people of the
States of New Hampshire ", etc., the Constitu-
tion as amended would read, "We, the people
of the United States." A difficulty of a not dis-
similar kind had .presented itself in the early
days of the Convention to which the reader's
attention has already been called and had been
solved in much the same way. The Virginian
plan had proposed a national legislature, a
national executive and a national judiciary, and
the Committee of the Whole reported to the Con-
vention, under date of June 13th, its opinion that
" a national Governm- ought to be established,
consisting of supreme Legislative, Executive &
Judiciary." 1 A week later, on June 20th, Mr.
Ellsworth of Connecticut, seconded by Mr. Gor-
ham of Massachusetts, moved to alter it so as to
run " that the Government of the United States
ought to consist of a supreme Legislative, Execu-
tive and Judiciary." In behalf of his motion,
which commended itself to the Convention, as
it was unanimously adopted, he said, as reported
by Mr. Madison, that it " would drop the word
national and retain the proper title of 'The
United States.' " 2
The Committee on Style and Arrangement,
apparently agreeing with Mr. Ellsworth, whose
1 Documentary History of the Constitution, vol. iii., p. 120.
2 Documentary History of the Constitution, vol. iii., p. 166.
88 Madison s Debates in Federal Convention
colleague Dr. Johnson, likewise of Connecticut,
was Chairman of the committee, also thought
the title to be the " United States," and so think-
ing substituted it in lieu of the names of the thir-
teen. This happy modification made the Pream-
ble ample, even although the thirteen original
States should sprout like Jesse's staff. This con-
jecture, for the matter was apparently too tri-
fling to be mentioned by Mr. Madison, by any
member of the committee, or by any delegate to
the conference, is substantiated by Mr. Chief
Justice Marshall, who regarded the American
Lines people as acting in States, not as " compounded
between rr ° »jl x.
the states into one common mass ; and he even went so far
as to say in his judicial masterpiece, what indeed
one must be very sure of himself to say, that " no
political dreamer was ever wild enough to think
of breaking down the lines which separate the
States."
But whatever the true explanation of the
change of phraseology may be, the Preamble is
in other respects a flourish of the pen, and con-
veys no power to the " United States " which is
not embodied in express or implied terms in the
granting clauses of the Constitution. We do not
need, as in the above case, to resort to conjecture,
inasmuch as Mr. Justice Harlan, an advocate of
" consolidation," to use the expression with which
Mr. Madison and his contemporaries were famil-
iar, said for the Supreme Court of the United
States, in the case of Jacobson v. Massachusetts
(197 U. S. 11,227), decided in 1905.
And a More Perfect Society of Nations 89
Although that Preamble indicates the general
purposes for which the people ordained and estab-
lished the Constitution, it has never been regarded
as the source of any substantive power conferred
on the Government of the United States or on
any of its Departments. Such powers embrace
only those expressly granted in the body of the
Constitution and such as may be implied from
those so granted. Although, therefore, one of the
declared objects of the Constitution was to secure
the blessings of liberty to all under the sover-
eign jurisdiction and authority of the United
States, no power can be exerted to that end by
the United States unless, apart from the Pream-
ble, it be found in some express delegation of
power or in some power to be properly implied
therefrom.
The American Union Interpreted by the
Supreme Court
In the case of Martin v. Hunter (1 Wheaton,
304, 329), decided in 1816, Mr. Justice Story felt
called upon to consider the origin, the nature,
and the purpose of the Constitution, and, speak- 2 b -' e p t of
ing for the court, he declared in language that stitution.
can neither be paraphrased nor improved:
The object of the constitution was to establish
three great departments of government; the legis-
lative, the executive, and the judicial depart-
ments. The first was to pass laws, the second, to
approve and execute them, and the third to
expound and enforce them.
90 Madison's Debates in Federal Convention
Admitting that Mr. Justice Story's statement
is correct, of the object which the framers of the
Constitution had in mind, the result can in like
manner best be expressed in the language of the
Supreme Court, for that tribunal has the final
word in defining, construing and applying the
Constitution of the United States. Of the many
statements of a like nature in which the reports
of the Supreme Court abound, the following,
running over more than a century, can be taken
as representing the views of that august tribunal
from the organization of the government under
the Constitution to the present day.
Thus, Mr. Justice Iredell said, in Chisholm v.
Georgia (2 Dallas, 419, 435), decided in 1793:
Every State in the Union, in every instance
where its sovereignty has not been delegated to
the United States, I consider to be as compleatly
sovereign, as the United States are in respect to
the powers surrendered. The United States are
sovereign as to all the powers of Government
actually surrendered: Each State in the Union
is sovereign as to all the powers reserved. It
must necessarily be so, because the United States
have no claim to any authority but such as the
States have surrendered to them: Of course the
part not surrendered must remain as it did before.
Mr. Justice Story further said, in the case of
Martin v. Hunter (1 Wheaton, 304, 325-326),
decided in 1816:
On the other hand, it is perfectly clear that
the sovereign powers vested in the state govern-
And a More Perfect Society of Nations 91
ments, by their respective constitutions, remained
unaltered and unimpaired, except so far as they
were granted to the government of the United
States.
These deductions do not rest upon general
reasoning, plain and obvious as they seem to be.
They have been positively recognised by one of
the articles in amendment of the constitution,
which declares, that " the powers not delegated
to the United States by the constitution, nor
prohibited by it to the states, are reserved to the
states respectively, or to the people."
The government, then, of the United States can
claim no powers which are not granted to it by
the constitution, and the powers actually granted,
must be such as are expressly given, or given by
necessary implication.
Mr. Chief Justice Marshall, in delivering the
unanimous opinion of the court over which he
presided, observed in the case of McCulloch v.
Maryland (4 Wheaton, 316, 410), decided in
1 819, that:
In America, the powers of sovereignty are
divided between the government of the Union,
and those of the States. They are each sovereign,
with respect to the objects committed to it, and
neither sovereign with respect to the objects com-
mitted to the other.
Mr. Chief Justice Chase, upon whose sturdy
shoulders the mantle of the great Chief Justice
fell, impressively stated, speaking for the court
in the case of Texas v. White (7 Wallace, 700,
725), decided in 1868:
92 Madison's Debates in Federal Convention
Under the Articles of Confederation each
State retained its sovereignty, freedom, and inde-
pendence, and every power, jurisdiction, and right
not expressly delegated to the United States.
Under the Constitution, though the powers of the
States were much restricted, still, all powers not
delegated to the United States, nor prohibited
to the States, are reserved to the States respec-
tively, or to the people. And we have already
had occasion to remark at this term, that " the
people of each State compose a State, having its
own government, and endowed with all the func-
tions essential to separate and independent exis-
tence," and that "without the States in union,
there could be no such political body as the
United States." Not only, therefore, can there
be no loss of separate and independent autonomy
to the States, through their union under the Con-
stitution, but it may be not unreasonably said
that the preservation of the States, and the main-
tenance of their governments, are as much within
the design and care of the Constitution as the
preservation of the Union and the maintenance of
the National government. The Constitution, in
all its provisions, looks to an indestructible Union,
composed of indestructible States.
Mr. Justice Nelson held, in the case of Collec-
tor v. Day (n Wallace, 113, 124), decided two
years later, that:
The general government, and the States,
although both exist within the same territorial
limits, are separate and distinct sovereignties,
acting separately and independently of each other,
within their respective spheres. The former in
its appropriate sphere is supreme; but the States
And a More Perfect Society of Nations 93
within the limits of their powers not granted, or,
in the language of the tenth amendment, " re-
served," are as independent of the general gov-
ernment as that government within its sphere is
independent of the States.
And finally, Mr. Justice Brewer, speaking for
the court in the case of South Carolina v. United
States (199 U. S. 437, 448), decided in 1905, thus
summed up the results of a century of judicial
opinion on the relation of the Union to the States
and the role of a judiciary in the American sys-
tem:
We have in this Republic a dual system of gov-
ernment, National and state, each operating
within the same territory and upon the same per-
sons; and yet working without collision, because
their functions are different. There are certain
matters over which the National Government has
absolute control and no action of the States can
interfere therewith, and there are others in which
the State is supreme, and in respect to them the
National Government is powerless. To preserve
the even balance between these two governments
and hold each in its separate sphere is the
peculiar duty of all courts, preeminently of this
— a duty oftentimes of great delicacy and diffi-
culty.
94 Madison's Debates in Federal Convention
In Conclusion
The men meeting in conference in Philadelphia
in the summer of 1787, acting under general
instructions — for they could not hope to receive
specific instructions on the many and vexed ques-
tions which confronted them from day to day —
faced indeed a more colossal task than they them-
selves knew, for they not only made a Constitu-
tion for twelve States but one which meets the
needs of a larger union than they could have
anticipated. This Union, composed today of
forty-eight States, equals in number the member-
ship of the Society of Nations; and the official
delegates of twelve of the sovereign, free and
independent States of America met and solved
in their conference the problems with which the
official delegates of the States composing the
Society of Nations will be confronted when one
day their official delegates meet in conference
and resolve themselves into a Committee on the
State of the Society.
The framers of the Constitution recognized that
they should only hope to form a Union for limited
purposes and that the Government of this Union
could only consist of enumerated powers. They
created a legislature, not to pass statutes without
let or hindrance, but to legislate upon the sub-
jects enumerated in the grant of legislative power
and to pass such laws as might be necessary or
proper under the grant of power and of powers
And a More Perfect Society of Nations 95
contained in the Constitution. They created an
executive to carry into effect the laws thus passed
in pursuance of the legislative grant, to exercise
the rights and to perform the duties appertain-
ing to his office. They created a judiciary to
interpret the Constitution, to keep each govern-
ment within its proper sphere, thus preventing
a collision between the different branches, and
confining the Union of limited powers and the
States with their reserved powers within their
appropriate spheres. They made the Constitu-
tion of the United States the law of the Union
and of each State, so successfully indeed that
the right and the duty of each can be and is fixed
by judicial decision. To do this they had to
define and to separate general from particular
or local interests, vesting the Union with the
former and leaving the latter with the States.
They had to overcome the interests of the sections,
which were, in some cases, so opposed as to be
irreconcilable, for freedom on the one hand and
slavery on the other could not be reconciled per-
manently.
They were met on the very threshold of the
conference itself with the conflict between the
large and the small States, and they settled it in
the closing days of the Convention to the satis-
faction of the contending parties. They did not,
indeed, have all the difficulties of language, of
race, of religion or traditions confronting larger
international conferences, but more than one
language was then and is now spoken on the
96 Madison's Debates in Federal Convention
Atlantic seaboard, and the colonists were drawn
from many countries and from different races.
Religions were as various then as now, and the
traditions were not the traditions of any one
country. These differences, had they existed in
a very marked degree, would have made the
solution more difficult but not insurmountable to
men of good will intent on a union of their
States for general purposes. The experience of
Switzerland, extending over many centuries,
where all of these problems have presented them-
selves, and where they have been overcome to
such a degree that the Switzerland of today has
maintained its neutrality completely surrounded
by belligerents of the very nationalities of which
their Confederation is formed, has amply shown
the accuracy of this observation.
The members of the Federal Convention were
well aware that the labor of their hands might be
rejected by the Conventions of the several States
to which the Constitution was to be referred for
ratification, and this fear is evidenced by the last
resolution adopted in the last session of the Con-
vention; that the President "retain the Jour-
nal and other papers, subject to the order of
Congress, if ever formed under the Constitu-
tion."
The Constitution was a completed instrument,
and lacked only the signatures of the delegates
Thesis- approving it. "Whilst the last members were
signing it," Mr. Madison says, " Doct? Franklin
looking towards the President's Chair, at the
ing Sun.
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And a More Perfect Society of Nations 97
back of which a rising sun happened to be
painted, observed to a few members near him,
that Painters had found it difficult to distinguish
in their art a rising from a setting sun. " I have,"
said he, " often and often in the course of the Ses-
sion, and the vicissitudes of my hopes and fears
as to its issue, looked at that behind the President
without being able to tell whether it was rising
or setting: But now at length I have the hap-
piness to know that it is a rising and not a setting
Sun."
It is still a rising sun.
The imperfect union under the Articles gave
way to the more perfect union of the Constitution,
just as the imperfect union of the Society of
Nations may give way to a more perfect associa-
tion devised in a conference of nations, just as __ _
Tv/r 1 The Con "
in the case of the American States. More than vention
a beginning has been made. A Society of Nations p^**
is not a theory, it is a fact stated in unmistakable Settlement
terms in the preamble to the Pacific Settlement nat ionai"
Convention, drafted in 1899 by the official dele- Disputes,
gates of twenty-six States meeting in conference
and acting under instructions. This Convention
declared their governments as:
Animated by a strong desire to concert for the
maintenance of the general peace;
Resolved to second by their best efforts the
friendly settlement of international disputes;
Recognizing the solidarity which unites the
members of the society of civilized nations;
Desirous of extending the empire of law and
Benjamin
Franklin's
forecast.
98 Madison s Debates in Federal Convention
of strengthening the appreciation of international
justice;
Convinced that the permanent institution of a
Court of Arbitration, accessible to all, in the
midst of the independent Powers, will contribute
effectively to this result;
Having regard to the advantages attending the
general and regular organization of arbitral pro-
cedure;
Sharing the opinion of the august initiator of
the International Peace Conference that it is expe-
dient to record in an international agreement the
principles of equity and right on which are based
the security of States and the welfare of peoples.
That the nations of Europe could be drawn
into closer relations and that the experience of the
United States might serve as a precedent for
such an interesting event, was foreseen, and the
process stated, by Dr. Franklin in a letter which
he wrote to a correspondent in Europe under date
of October 22, 1787:
I send you enclos'd the propos'd new Federal
Constitution for these States. I was engag'd 4
Months of the last Summer in the Convention
that form'd it. It is now sent by Congress to the
several States for their Confirmation. If it suc-
ceeds, I do not see why you might not in Europe
carry the Project of good Henry the 4th into Exe-
cution, by forming a Federal Union and One
Grand Republick of all its different States &
Kingdoms; by means of a like Convention; for
we had many interests to reconcile. 1
1 Benjamin Franklin to Mr. Grand, October 22, 1787 (Documentary
History of the Constitution, vol. iv., pp. 341-342).
And a More Perfect Society of Nations 99
The Constitution of the more perfect Union
has succeeded, and if different States and king-
doms should be inclined to substitute the regu- Madison
lated interdependence of States for their unregu- liberty of
lated independence they need only turn for light the world,
and leading to the little man of Montpelier, who
has preserved for all time an exact account of
what took place in the conference of the States
in Philadelphia in the summer of 1787. Although
" the drudgery " of the undertaking " almost
killed him," it is fortunately a fact that, " by an
authentic exhibition of the objects, the opinions
and the reasonings from which the new system of
government was to receive its peculiar structure
and organization," we are now aware, as Mr.
Madison then was, " of the value of such a contri-
bution to the fund of materials for the history of
the Constitution, on which would be staked the
happiness of a young people, great even in its
infancy and possibly the cause of liberty through-
out the world."
0352
APPENDIX
THE DECLARATION OF INDEPENDENCE—
1776 x
In Congress, July 4, 1776
The unanimous Declaration of the thirteen united
States of America
When, in the Course of human events, it becomes
necessary for one people to dissolve the political bands
which have connected them with another, and to assume
among the Powers of the earth, the separate and equal
station to which the Laws of Nature and of Nature's
God entitle them, a decent respect to the opinions of
mankind requires that they should declare the causes
which impel them to the separation.
We hold these truths to be self-evident, that all men
are created equal, that they are endowed by their Cre-
ator with certain unalienable Rights, that among these
are Life, Liberty and the pursuit of Happiness. That to
secure these rights, Governments are instituted among
Men, deriving their just powers from the consent of the
governed, That whenever any Form of Government
becomes destructive of these ends, it is the Right of
the People to alter or abolish it, and to institute
new Government, laying its foundation on such prin-
ciples and organizing its powers in such form, as to
them shall seem most likely to effect their Safety and
Happiness. Prudence, indeed, will dictate that Gov-
ernments long established should not be changed for
light and transient causes; and accordingly all experi-
ence hath shown, that mankind are more disposed to
1 Revised Statutes of the United States, 1878, pp. 3-6.
104 Madison's Debates in Federal Convention
suffer, while evils are sufferable, than to right them-
selves by abolishing the forms to which they are accus-
tomed. But when a long train of abuses and usurpa-
tions, pursuing invariably the same Object evinces a de-
sign to reduce them under absolute Despotism, it is
their right, it is their duty, to throw off such Govern-
ment, and to provide new Guards for their future
security. — Such has been the patient sufferance of these
Colonies; and such is now the necessity which constrains
them to alter their former Systems of Government.
The history of the present King of Great Britain is a
history of repeated injuries and usurpations, all having
in direct object the establishment of an absolute
Tyranny over these States. To prove this, let Facts
be submitted to a candid world.
He has refused his Assent to Laws, the most whole-
some and necessary for the public good.
He has forbidden his Governors to pass Laws of
immediate and pressing importance, unless suspended
in their operation till his Assent should be obtained;
and when so suspended, he has utterly neglected to
attend to them.
He has refused to pass other Laws for the accommo-
dation of large districts of people, unless those people
would relinquish the right of Representation in the
Legislature, a right inestimable to them and formidable
to tyrants only.
He has called together legislative bodies at places
unusual, uncomfortable, and distant from the depository
of their Public Records, for the sole purpose of
fatiguing them into compliance with his measures.
He has dissolved Representative Houses repeatedly,
for opposing with manly firmness his invasions on the
rights of the people.
And a More Perfect Society of Nations 105
He has refused for a long time, after such dissolu-
tions, to cause others to be elected; whereby the Legis-
lative Powers, incapable of Annihilation, have returned
to the People at large for their exercise; the State
remaining in the mean time exposed to all the dangers
of invasion from without, and convulsions within.
He has endeavoured to prevent the population of
these States; for that purpose obstructing the Laws
for Naturalization of Foreigners; refusing to pass
others to encourage their migration hither, and
raising the conditions of new Appropriations of
Lands.
He has obstructed the Administration of Justice, by
refusing his Assent to Laws for establishing Judiciary
Powers.
He has made Judges dependent on his Will alone,
for the tenure of their offices, and the amount and pay-
ment of their salaries.
He has erected a multitude of New Offices, and sent
hither swarms of Officers to harass our People, and
eat out their substance.
He has kept among us, in times of peace, Standing
Armies without the consent of our legislature.
He has affected to render the Military independent
of and superior to the Civil Power.
He has combined with others to subject us to a
jurisdiction foreign to our constitution, and unacknowl-
edged by our laws; giving his Assent to their acts of
pretended Legislation:
For quartering large bodies of armed troops
among us :
For protecting them, by a mock Trial, from Punish-
ment for any Murders which they should commit on the
Inhabitants of these States:
106 Madison s Debates in Federal Convention
For cutting off our Trade with all parts of the
world :
For imposing taxes on us without our Consent:
For depriving us, in many cases, of the benefits of
Trial by Jury :
For transporting us beyond Seas to be tried for pre-
tended offences:
For abolishing the free System of English Laws in
a neighbouring Province, establishing therein an Arbi-
trary government, and enlarging its Boundaries so as
to render it at once an example and fit instrument for
introducing the same absolute rule into these Colonies :
For taking away our Charters, abolishing our most
valuable Laws, and altering fundamentally the Forms
of our Governments :
For suspending our own Legislatures, and declaring
themselves invested with Power to legislate for us in
all cases whatsoever.
He has abdicated Government here, by declaring
us out of his Protection and waging War against us.
He has plundered our seas, ravaged our Coasts,
burnt our towns, and destroyed the lives of our people.
He is at this time transporting large armies of for-
eign mercenaries to compleat the works of death, deso-
lation and tyranny, already begun with circumstances of
Cruelty & perfidy scarcely paralleled in the most bar-
barous ages, and totally unworthy the Head of a civil-
ized nation.
He has constrained our fellow Citizens taken Cap-
tive on the high Seas to bear Arms against their Coun-
try, to become the executioners of their friends and
Brethren, or to fall themselves by their Hands.
He has excited domestic insurrections amongst us,
and has endeavoured to bring on the inhabitants of our
And a More Perfect Society of Nations 107
frontiers, the merciless Indian Savages, whose known
rule of warfare, is an undistinguished destruction of all
ages, sexes and conditions.
In every stage of these Oppressions We have Peti-
tioned for Redress in the most humble terms: Our
repeated Petitions have been answered only by repeated
injury. A Prince, whose character is thus marked by
every act which may define a Tyrant, is unfit to be the
ruler of a free People.
Nor have We been wanting in attention to our Brit-
ish brethren. We have warned them from time to
time of attempts by their legislature to extend an un-
warrantable jurisdiction over us. We have reminded
them of the circumstances of our emigration and settle-
ment here. We have appealed to their native justice
and magnanimity, and we have conjured them by the
ties of our common kindred to disavow these usurpa-
tions, which would inevitably interrupt our connec-
tions and correspondence. They too have been deaf
to the voice of justice and of consanguinity. We must,
therefore, acquiesce in the necessity, which denounces
our Separation, and hold them, as we hold the rest of
mankind, Enemies in War, in Peace Friends.
We, therefore, the Representatives of the united
States of America, in General Congress, Assembled,
appealing to the Supreme Judge of the world for the
rectitude of our intentions, do, in the Name, and by
Authority of the good People of these Colonies,
solemnly publish and declare, That these United Col-
onies are, and of Right ought to be Free and Independ-
ent States; that they are Absolved from all Allegiance
to the British Crown, and that all political connection
between them and the State of Great Britain, is and
ought to be totally dissolved; and that as Free and
108 Madison's Debates in Federal Convention
Independent States, they have full Power to levy War,
conclude Peace, contract Alliances, establish Commerce,
and to do all other Acts and Things which Independent
States may of right do. And for the support of this
Declaration, with a firm reliance on the Protection of
Divine Providence, we mutually pledge to each other
our Lives, our Fortunes and our sacred Honor.
JOHN HANCOCK.
New Hampshire
Josiah Bartlett Matthew Thornton
Wm. Whipple
Massachusetts Bay
Saml. Adams Robt. Treat Paine
John Adams Elbridge Gerry
Rhode Island
Step. Hopkins William Ellery
Connecticut
Roger Sherman Wm. Williams
Sam'el Huntington Oliver Wolcott
New York
Wm. Floyd Frans. Lewis
Phil. Livingston Lewis Morris
New Jersey
Richd. Stockton John Hart
Jno. Witherspoon Abra. Clark
Fras. Hopkinson
And a More Perfect Society of Nations 109
Pennsylvania
Robt. Morris Jas. Smith
Benjamin Rush Geo. Taylor
Benja. Franklin James Wilson
John Morton Geo. Ross
Geo. Clymer
Delaware
Caesar Rodney Tho. M'Kean
Geo. Read
Maryland
Samuel Chase Thos. Stone
Wm. Paca Charles Carroll of
Carrollton
Virginia
George Wythe Thos. Nelson, Jr.
Richard Henry Lee Francis Lightfoot Lee
Th. Jefferson Carter Braxton
Benja. Harrison
North Carolina
Wm. Hooper John Penn
Joseph Hewes
South Carolina
Edward Rutledge Thomas Lynch, Junr.
Thos. Heyward, Junr. Arthur Middleton
Georgia
Button Gwinnett Geo. Walton
Lyman Hall
ARTICLES OF CONFEDERATION— 1777 1
To all to Whom these Presents shall come, we the un-
dersigned Delegates of the States affixed to our
Names send greeting.
Whereas the Delegates of the United States of
America in Congress assembled did on the fifteenth day
of November in the Year of our Lord One Thousand
Seven Hundred and Seventy-seven, and in the Second
Year of the Independence of America agree to certain
articles of Confederation and perpetual Union between
the States of Newhampshire, Massachusetts-Bay,
Rhodeisland and Providence Plantations, Connecticut,
New York, New Jersey, Pennsylvania, Delaware,
Maryland, Virginia, North-Carolina, South-Carolina
and Georgia in the Words following, viz.
" Articles of Confederation and perpetual Union be-
tween the States of Newhampshire, Massachusetts-
bay, Rhodeisland and Providence Plantations, Con-
necticut, New-York, New-Jersey, Pennsylvania,
Delaware, Maryland, Virginia, North-Carolina,
South-Carolina and Georgia.
Article I. The stile of this confederacy shall be
" The United States of America."
Article II. Each State retains its sovereignty, free-
dom and independence, and every power, jurisdiction
and right, which is not by the confederation expressly
delegated to the United States, in Congress assembled.
1 Revised Statutes of the United States, pp. 7-12.
Madison's Debates in Federal Convention in
Article III. The said States hereby severally enter
into a firm league of friendship with each other, for
their common defence, the security of their liberties,
and their mutual and general welfare, binding them-
selves to assist each other, against all force offered to,
or attacks made upon them, or any of them, on account
of religion, sovereignty, trade, or any other pretence
whatever.
Article IV. The better to secure and perpetuate
mutual friendship and intercourse among the people
of the different States in this Union, the free inhabitants
of each of these States, paupers, vagabonds and fugi-
tives from justice excepted, shall be entitled to all priv-
ileges and immunities of free citizens in the several
States; and the people of each State shall have free
ingress and regress to and from any other State, and
shall enjoy therein all the privileges of trade and com-
merce, subject to the same duties, impositions and re-
strictions as the inhabitants thereof respectively, pro-
vided that such restrictions shall not extend so far as
to prevent the removal of property imported into any
State, to any other State of which the owner is an in-
habitant; provided also that no imposition, duties or
restriction shall be laid by any State, on the property
of the United States, or either of them.
If any person guilty of, or charged with treason,
felony, or other high misdemeanor in any State, shall
flee from justice, and be found in any of the United
States, he shall upon demand of the Governor or Ex-
ecutive power, of the State from which he fled, be de-
livered up and removed to the State having jurisdiction
of his offence.
Full faith and credit shall be given in each of
these States to the records, acts and judicial proceed-
112 Madison's Debates in Federal Convention
ings of the courts and magistrates of every other
State.
Article V. For the more convenient management
of the general interest of the United States, delegates
shall be annually appointed in such manner as the
legislature of each State shall direct, to meet in Con-
gress on the first Monday in November, in every year,
with a power reserved to each State, to recall its dele-
gates, or any of them, at any time within the year, and
to send others in their stead, for the remainder of the
year.
No State shall be represented in Congress by less
than two, nor by more than seven members; and no
person shall be capable of being a delegate for more
than three years in any term of six years; nor shall
any person, being a delegate, be capable of holding any
office under the United States, for which he, or another
for his benefit receives any salary, fees or emolument
of any kind.
Each State shall maintain its own delegates in a
meeting of the States, and while they act as members
of the committee of the States.
In determining questions in the United States, in
Congress assembled, each State shall have one vote.
Freedom of speech and debate in Congress shall not
be impeached or questioned in any court, or place out
of Congress, and the members of Congress shall be
protected in their persons from arrests and imprison-
ments, during the time of their going to and from, and
attendance on Congress, except for treason, felony, or
breach of the peace.
Article VI. No State without the consent of the
United States in Congress assembled, shall send any
embassy to, or receive any embassy from, or enter into
And a More Perfect Society of Nations 113
any conference, agreement, alliance or treaty with any
king, prince or state ; nor shall any person holding any
office of profit or trust under the United States, or any
of them, accept of any present, emolument, office or
title of any kind whatever from any king, prince or for-
eign state; nor shall the United States in Congress
assembled, or any of them, grant any title of nobility.
No two or more States shall enter into any treaty,
confederation or alliance whatever between them, with-
out the consent of the United States in Congress as-
sembled, specifying accurately the purposes for which
the same is to be entered into, and how long it shall
continue.
No State shall lay any imposts or duties, which may
interfere with any stipulations in treaties, entered into
by the United States in Congress assembled, with any
king, prince or state, in pursuance of any treaties
already proposed by Congress, to the courts of France
and Spain.
No vessels of war shall be kept up in time of peace by
any State, except such number only, as shall be deemed
necessary by the United States in Congress assembled,
for the defence of such State, or its trade; nor shall
any body of forces be kept up by any State, in time of
peace, except such number only, as in the judgment of
the United States, in Congress assembled, shall be
deemed requisite to garrison the forts necessary for
the defence of such State; but every State shall always
keep up a well regulated and disciplined militia, suffi-
ciently armed and accoutred, and shall provide and con-
stantly have ready for use, in public stores, a due num-
ber of field pieces and tents, and a proper quantity of
arms, ammunition and camp equipage.
No State shall engage in any war without the con-
114 Madison s Debates in Federal Convention
sent of the United States in Congress assembled, un-
less such State be actually invaded by enemies, or shall
have received certain advice of a resolution being
formed by some nation of Indians to invade such
State, and the danger is so imminent as not to admit
of a delay, till the United States in Congress assembled
can be consulted: nor shall any State grant commis-
sions to any ships or vessels of war, nor letters of
marque or reprisal, except it be after a declaration of
war by the United States in Congress assembled, and
then only against the kingdom or state and the sub-
jects thereof, against which war has been so declared,
and under such regulations as shall be established by
the United States in Congress assembled, unless such
State be infested by pirates, in which case vessels of
war may be fitted out for that occasion, and kept so long
as the danger shall continue, or until the United States
in Congress assembled shall determine otherwise.
Article VII. When land-forces are raised by any
State for the common defence, all officers of or under
the rank of colonel, shall be appointed by the Legis-
lature of each State respectively by whom such forces
shall be raised, or in such manner as such State shall
direct, and all vacancies shall be filled up by the State
which first made the appointment.
Article VIII. All charges of war, and all other
expenses that shall be incurred for the common defence
or general welfare, and allowed by the United States
in Congress assembled, shall be defrayed out of a com-
mon treasury, which shall be supplied by the several
States, in proportion to the value of all land within
each State, granted to or surveyed for any person,
as such land and the buildings and improvements
thereon shall be estimated according to such mode as
And a More Perfect Society of Nations 115
the United States in Congress assembled, shall from
time to time direct and appoint.
The taxes for paying that proportion shall be laid
and levied by the authority and direction of the Legis-
latures of the several States within the time agreed upon
by the United States in Congress assembled.
Article IX. The United States in Congress as-
sembled, shall have the sole and exclusive right and
power of determining on peace and war, except in the
cases mentioned in the sixth article — of sending and
receiving ambassadors — entering into treaties and alli-
ances, provided that no treaty of commerce shall be
made whereby the legislative power of the respective
States shall be restrained from imposing such imposts
and duties on foreigners, as their own people are sub-
jected to, or from prohibiting the exportation or impor-
tation of any species of goods or commodities what-
soever — of establishing rules for deciding in all cases,
what captures on land or water shall be legal, and in
what manner prizes taken by land or naval forces in
the service of the United States shall be divided or
appropriated — of granting letters of marque and re-
prisal in times of peace — appointing courts for the
trial of piracies and felonies committed on the high seas
and establishing courts for receiving and determining
finally appeals in all cases of captures, provided that no
member of Congress shall be appointed a judge of any
of the said courts.
The United States in Congress assembled shall also
be the last resort on appeal in all disputes and differ-
ences now subsisting or that hereafter may arise be-
tween two or more States concerning boundary, juris-
diction or any other cause whatever; which authority
shall always be exercised in the manner following.
1 1 6 Madison's Debates in Federal Convention
Whenever the legislative or executive authority or law-
ful agent of any State in controversy with another shall
present a petition to Congress, stating the matter in
question and praying for a hearing, notice thereof shall
be given by order of Congress to the legislative or
executive authority of the other State in controversy,
and a day assigned for the appearance of the parties
by their lawful agents, who shall then be directed to
appoint by joint consent, commissioners or judges to
constitute a court for hearing and determining the
matter in question : but if they can not agree, Congress
shall name three persons out of each of the United
States, and from the list of such persons each party
shall alternately strike out one, the petitioners begin-
ning, until the number shall be reduced to thirteen; and
from that number not less than seven, nor more than
nine names as Congress shall direct, shall in the pres-
ence of Congress be drawn out by lot, and the persons
whose names shall be so drawn or any five of them,
shall be commissioners or judges, to hear and finally
determine the controversy, so always as a major part
of the judges who shall hear the cause shall agree in
the determination : and if either party shall neglect to
attend at the day appointed, without showing reasons,
which Congress shall judge sufficient, or being present
shall refuse to strike, the Congress shall proceed to
nominate three persons out of each State, and the Secre-
tary of Congress shall strike in behalf of such party
absent or refusing; and the judgment and sentence of
the court to be appointed, in the manner before pre-
scribed, shall be final and conclusive; and if any of
the parties shall refuse to submit to the authority of
such court, or to appear or defend their claim or cause,
the court shall nevertheless proceed to pronounce sen-
And a More Perfect Society of Nations 117
tence, or judgment, which shall in like manner be final
and decisive, the judgment or sentence and other pro-
ceedings being in either case transmitted to Con-
gress, and lodged among the acts of Congress for the
security of the parties concerned: provided that every
commissioner, before he sits in judgment, shall take an
oath to be administered by one of the judges of the
supreme or superior court of the State, where the cause
shall be tried, " well and truly to hear and determine
the matter in question, according to the best of his judg-
ment, without favour, affection or hope of reward:"
provided also that no State shall be deprived of terri-
tory for the benefit of the United States.
All controversies concerning the private right of soil
claimed under different grants of two or more States,
whose jurisdiction as they may respect such lands, and
the States which passed such grants are adjusted, the
said grants or either of them being at the same time
claimed to have originated antecedent to such settle-
ment of jurisdiction, shall on the petition of either
party to the Congress of the United States, be finally
determined as near as may be in the same manner as
is before prescribed for deciding disputes respecting
territorial jurisdiction between different States.
The United States in Congress assembled shall also
have the sole and exclusive right and power of regu-
lating the alloy and value of coin struck by their own
authority, or by that of the respective States, — fixing
the standard of weights and measures throughout the
United States, — regulating the trade and managing all
affairs with the Indians, not members of any of the
States, provided that the legislative right of any State
within its own limits be not infringed or violated —
establishing and regulating post-offices from one State
1 1 8 Madison's Debates in Federal Convention
to another, throughout all the United States, and exact-
ing such postage on the papers passing thro' the same
as may be requisite to defray the expenses of the said
office — appointing all officers of the land forces, in the
service of the United States, excepting regimental offi-
ers — appointing all the officers of the naval forces, and
commissioning all officers whatever in the service of the
United States — making rules for the government and
regulation of the said land and naval forces, and direct-
ing their operations.
The United States in Congress assembled shall have
authority to appoint a committee, to sit in the recess of
Congress, to be denominated " A Committee of the
States," and to consist of one delegate from each State;
and to appoint such other committees and civil officers
as may be necessary for managing the general affairs
of the United States under their direction — to appoint
one of their number to preside, provided that no person
be allowed to serve in the office of president more than
one year in any term of three years; to ascertain the
necessary sums of money to be raised for the ser-
vice of the United States, and to appropriate and apply
the same for defraying the public expenses — to borrow
money, or emit bills on the credit of the United States,
transmitting every half year to the respective States an
account of the sums of money so borrowed or emitted,
— to build and equip a navy — to agree upon the num-
ber of land forces, and to make requisitions from each
State for its quota, in proportion to the number of
white inhabitants in such State ; which requisition shall
be binding, and thereupon the Legislature of each
State shall appoint the regimental officers, raise the
men and cloath, arm and equip them in a soldier like
manner, at the expense of the United States; and the
And a More Perfect Society of Nations 119
officers and men so cloathed, armed and equipped shall
march to the place appointed, and within the time
agreed on by the United States in Congress assembled:
but if the United States in Congress assembled shall,
on consideration of circumstances, judge proper that
any State should not raise men, or should raise a
smaller number than its quota, and that any other
State should raise a greater number of men than the
quota thereof, such extra number shall be raised, of-
ficered, cloathed, armed and equipped in the same man-
ner as the quota of such State, unless the legislature of
such State shall judge that such extra number cannot
be safely spared out of the same, in which case they
shall raise, officer, cloath, arm and equip as many of
such extra number as they judge can be safely spared.
And the officers and men so cloathed, armed and
equipped, shall march to the place appointed, and
within the time agreed on by the United States in Con-
gress assembled.
The United States in Congress assembled shall never
engage in a war, nor grant letters of marque and re-
prisal in time of peace, nor enter into any treaties or
alliances, nor coin money, nor regulate the value
thereof, nor ascertain the sums and expenses necessary
for the defence and welfare of the United States, or
any of them, nor emit bills, nor borrow money on the
credit of the United States, nor appropriate money,
nor agree upon the number of vessels of war, to be built
or purchased, or the number of land or sea forces to
be raised, nor appoint a commander in chief of the army
or navy, unless nine States assent to the same : nor
shall a question on any other point, except for adjourn-
ing from day to day be determined, unless by the votes
120 Madison's Debates in Federal Convention
of a majority of the United States in Congress as-
sembled.
The Congress of the United States shall have power
to adjourn to any time within the year, and to any
place within the United States, so that no period of ad-
journment be for a longer duration than the space of
six months, and shall publish the journal of their pro-
ceedings monthly except such parts thereof relating to
treaties, alliances or military operations, as in their
judgment require secrecy; and the yeas and nays of the
delegates of each State on any question shall be en-
tered on the journal, when it is desired by any dele-
gate; and the delegates of a State, or any of them, at
his or their request shall be furnished with a transcript
of the said journal, except such parts as are above ex-
cepted, to lay before the Legislatures of the several
States.
Article X. The committee of the States, or any nine
of them, shall be authorized to execute, in the recess of
Congress, such of the powers of Congress as the
United States in Congress assembled, by the consent of
nine States, shall from time to time think expedient
to vest them with; provided that no power be dele-
gated to the said committee, for the exercise of which,
by the articles of confederation, the voice of nine States
in the Congress of the United States assembled is re-
quisite.
Article XI. Canada acceding to this confedera-
tion, and joining in the measures of the United States,
shall be admitted into, and entitled to all the advan-
tages of this Union : but no other colony shall be ad-
mitted into the same, unless such admission be agreed
to by nine States.
Article XII. All bills of credit emitted, monies
And a More Perfect Society of Nations 121
borrowed and debts contracted by, or under the author-
ity of Congress, before the assembling of the United
States, in pursuance of the present confederation, shall
be deemed and considered as a charge against the
United States, for payment and satisfaction whereof
the said United States, and the public faith are hereby
solemnly pledged.
Article XIII. Every State shall abide by the de-
terminations of the United States in Congress assem-
bled, on all questions which by this confederation are
submitted to them. And the articles of this confed-
eration shall be inviolably observed by every State,
and the Union shall be perpetual; nor shall any altera-
tion at any time hereafter be made in any of them; un-
less such alteration be agreed to in a Congress of the
United States, and be afterwards confirmed by the
Legislatures of every State.
And whereas it hath pleased the Great Governor of
the world to incline the hearts of the Legislatures we
respectively represent in Congress, to approve of, and
to authorize us to ratify the said articles of confeder-
ation and perpetual union. Know ye that we the under-
signed delegates, by virtue of the power and authority
to us given for that purpose, do by these presents, in
the name and in behalf of our respective constituents,
fully and entirely ratify and confirm each and every
of the said articles of confederation and perpetual
union, and all and singular the matters and things
therein contained : And we do further solemnly plight
and engage the faith of our respective constituents, that
they shall abide by the determinations of the United
States in Congress assembled, on all questions, which
by the said confederation are submitted to them. And
that the articles thereof shall be inviolably observed by
122 Madison s Debates in Federal Convention
the States we respectively represent, and that the
Union shall be perpetual.
In witness whereof we have hereunto set our hands
in Congress. Done at Philadelphia in the State of
Pennsylvania the ninth day of July in the year of our
Lord one thousand seven hundred and seventy-eight,
and in the third year of the independence of America.
On the part & behalf of the State of New Hampshire.
Josiah Bartlett, John Wentworth,
Junr.,
August 8th, 1778.
On the part and behalf of the State of Massachusetts
Bay.
John Hancock, Francis Dana,
Samuel Adams, James Lovell,
Elbridge Gerry Samuel Holten.
On the part and behalf of the State of Rhode Island
and Providence Plantations.
William Ellery, John Collins.
Henry Marchant,
On the part and behalf of the State of Connecticut.
Roger Sherman, Titus Hosmer,
Samuel Huntington, Andrew Adams.
Oliver Wolcott,
On the part and behalf of the State of New York.
Jas. Duane, Wm. Duer,
Fra. Lewis, Gouv. Morris.
On the part and in behalf of the State of New Jersey,
Novr. 26, 1778.
Jno. Witherspoon, Nathl. Scudder.
And a More Perfect Society of Nations 123
On the part and behalf of the State of Pennsylvania.
Robt. Morris, William Clingan,
Daniel Roberdeau, Joseph Reed, 2 2d July,
Jona. Bayard Smith, 1778.
On the part & behalf of the State of Delaware.
Tho. M'Kean, Feby. 12, Nicholas Van Dyke.
1779.
John Dickinson, May
5th, 1779.
On the part and behalf of the State of Maryland.
John Hanson, March 1, Daniel Carroll, Mar.
1 7 8 1 . 1, 1781.
On the part and behalf of the State of Virginia.
Richard Henry Lee, Jno. Harvie,
John Banister, Francis Lightfoot Lee.
Thomas Adams,
On the part and behalf of the State of No. Carolina.
John Penn, July 21st, Corns. Harnett,
1778. Jno. Williams.
On the part and behalf of the State of South Carolina.
Henry Laurens, Jno. Matthews,
William Henry Dray- Richd. Hutson,
ton, Thos. Heyward, Junr.
On the part & behalf of the State of Georgia.
Jno. Walton, 24th July, Edwd. Telfair,
1778. Edwd. Langworthy.
THE CONSTITUTION OF THE UNITED
STATES— 1787 x
We the People of the United States, in Order to
form a more perfect Union, establish Justice, insure
domestic Tranquility, provide for the common defence,
promote the general Welfare, and secure the Blessings
of Liberty to ourselves and our Posterity, do ordain
and establish this Constitution for the United States
of America.
Article I.
Section i. All legislative Powers herein granted
shall be vested in a Congress of the United States,
which shall consist of a Senate and House of Represen-
tatives.
Section 2. (1) The House of Representatives shall
be composed of Members chosen every second Year
by the People of the several States, and the Electors in
each State shall have the Qualifications requisite for
Electors of the most numerous Branch of the State
Legislature.
(2) No Person shall be a Representative who shall
not have attained the Age of twenty-five Years, and
been seven Years a Citizen of the United States, and
who shall not, when elected, be an Inhabitant of that
State in which he shall be chosen.
1 The text of the Constitution, and the amendments thereto, are
taken from the Revised Statutes of the United States, 1878, and
Senate Document No. 12, 63d Congress, 1st Session.
The numbers prefixed to the clauses of the Constitution, and here
placed in parentheses, do not appear in the original text.
Madison's Debates in Federal Convention 125
(3) * [Representatives and direct Taxes shall be appor-
tioned among the several States which may be included
within this Union, according to their respective Num-
bers, which shall be determined by adding to the whole
Number of free Persons, including those bound to
Service for a Term of Years, and excluding Indians
not taxed, three fifths of all other Persons.] The
actual Enumeration shall be made within three Years
after the first Meeting of the Congress of the United
States, and within every subsequent Term of ten Years,
in such Manner as they shall by Law direct. The Num-
ber of Representatives shall not exceed one for every
thirty Thousand, but each State shall have at Least
one Representative; and until such enumeration shall
be made, the State of New Hampshire shall be entitled
to chuse three, Massachusetts eight, Rhode-Island and
Providence Plantations one, Connecticut five, New-
York six, New Jersey four, Pennsylvania eight, Del-
aware one, Maryland six, Virginia ten, North Carolina
five, South Carolina five, and Georgia three.
(4) When vacancies happen in the Representation
from any State, the Executive Authority thereof shall
issue Writs of Election to fill such Vacancies.
(5) The House of Representatives shall chuse their
Speaker and other Officers; and shall have the sole
Power of Impeachment.
Section 3. [ (1) The Senate of the United States
shall be composed of two Senators from each State,
chosen by the Legislature thereof, for six Years; and
each Senator shall have one Vote.Jf
* The clause included in brackets is amended by the fourteenth
amendment, 2d Session.
t The first paragraph of section three of Article 1, of the Con-
stitution of the United States, and so much of paragraph two of the
same section as relates to filling vacancies are amended by the
seventeenth amendment to the Constitution.
126 Madison's Debates in Federal Convention
(2) Immediately after they shall be assembled in Con-
sequence of the first Election, they shall be divided as
equally as may be into three Classes. The Seats of the
Senators of the first Class shall be vacated at the
Expiration of the second Year, of the second Class at
the Expiration of the fourth Year, and of the third
Class at the Expiration of the sixth Year, so that one-
third may be chosen every second Year; and if Vacan-
cies happen by Resignation, or otherwise, during the
Recess of the Legislature of any State, the Executive
thereof may make temporary Appointments [until the
next Meeting of the Legislature, which shall then fill
such Vacancies].
(3) n Person shall be a Senator who shall not have
attained to the Age of thirty Years, and been nine Years
a Citizen of the United States, and who shall not,
when elected, be an Inhabitant of that State for which
he shall be chosen.
(4) The Vice President of the United States shall be
President of the Senate, but shall have no Vote, unless
they be equally divided.
(5) The Senate shall chuse their other Officers, and
also a President pro tempore, in the Absence of the
Vice President, or when he shall exercise the Office of
President of the United States.
(6) The Senate shall have the sole Power to try all
Impeachments. When sitting for that Purpose, they
shall be on Oath or Affirmation. When the President
of the United States is tried, the Chief Justice shall
preside : And no Person shall be convicted without
the Concurrence of two thirds of the Members present.
(7) Judgment in Cases of Impeachment shall not
extend further than to removal from Office, and dis-
qualification to hold and enjoy any Office of honor,
And a More Perfect Society of Nations 127
Trust or Profit under the United States : but the Party
convicted shall nevertheless be liable and subject to
Indictment, Trial, Judgment and Punishment, accord-
ing to Law.
Section 4. (1) The Times, Places and Manner of
holding Elections for Senators and Representatives,
shall be prescribed in each State by the Legislature
thereof; but the Congress may at any time by Law
make or alter such Regulations, except as to the Places
of chusing Senators.
(2) The Congress shall assemble at least once in every
Year, and such Meeting shall be on the first Monday in
December, unless they shall by Law appoint a different
Day.
Section 5. (1) Each House shall be the Judge of the
Elections, Returns and Qualifications of its own Mem-
bers, and a Majority of each shall constitute a Quorum
to do Business; but a smaller Number may adjourn
from day to day, and may be authorized to compel
the Attendance of absent Members, in such Manner,
and under such Penalties as each House may
provide.
(2) Each House may determine the Rules of its Pro-
ceedings, punish its Members for disorderly Behaviour,
and, with the Concurrence of two thirds, expel a Mem-
ber.
(3) Each House shall keep a Journal of its Proceed-
ings, and from time to time publish the same, excepting
such Parts as may in their Judgment require Secrecy;
and the Yeas and Nays of the Members of either
House on any question shall, at the Desire of one fifth
of those Present, be entered on the Journal.
(4) Neither House, during the Session of Congress,
shall, without the consent of the other, adjourn for
128 Madison s Debates in Federal Convention
more than three days, nor to any other Place than that
in which the two Houses shall be sitting.
Section 6. (1) The Senators and Representatives
shall receive a Compensation for their Services, to be
ascertained by Law, and paid out of the Treasury of
the United States. They shall in all Cases, except
Treason, Felony and Breach of the Peace, be privi-
leged from Arrest during their Attendance at the Ses-
sion of their respective Houses, and in going to and
returning from the same; and for any Speech or
Debate in either House, they shall not be questioned in
any other Place.
(2) No Senator or Representative shall, during the
Time for which he was elected, be appointed to any
civil Office under the Authority of the United States,
which shall have been created, or the Emoluments
whereof shall have been encreased during such time;
and no Person holding any Office under the United
States, shall be a Member of either House during his
Continuance in Office.
Section 7. (1) All Bills for raising Revenue shall
originate in the House of Representatives; but the
Senate may propose or concur with Amendments as
on other Biils.
(2) Every Bill which shall have passed the House of
Representatives and the Senate, shall, before it become
a Law, be presented to the President of the United
States; If he approve he shall sign it, but if not he shall
return it, with his Objections to that House in which it
shall have originated, who shall enter the Objections
at large on their Journal, and proceed to reconsider it.
If after such Reconsideration two thirds of that House
shall agree to pass the Bill, it shall be sent, together
with the Objections, to the other House, by which it
And a More Perfect Society of Nations 129
shall likewise be reconsidered, and if approved by two
thirds of that House, it shall become a Law. But in
all such Cases the Votes of both Houses shall be deter-
mined by Yeas and Nays, and the Names of the Per-
sons voting for and against the Bill shall be entered on
the Journal of each House respectively. If any Bill
shall not be returned by the President within ten Days
(Sundays excepted) after it shall have been presented
to him, the Same shall be a Law, in like Manner as if
he had signed it, unless the Congress by their Adjourn-
ment prevent its Return, in which Case it shall not be
a Law.
(3) Every Order, Resolution, or Vote to which the
Concurrence of the Senate and House of Representa-
tives may be necessary (except on a question of
Adjournment) shall be presented to the President of
the United States; and before the Same shall take
Effect, shall be approved by him, or being disapproved
by him, shall be repassed by two thirds of the Senate
and House of Representatives, according to the Rules
and Limitations prescribed in the Case of a Bill.
Section 8. The Congress shall have Power (1) To
lay and collect Taxes, Duties, Imposts and Excises, to
pay the Debts and provide for the common Defence
and general Welfare of the United States; but all
Duties, Imposts and Excises shall be uniform through-
out the United States ;
(2) To borrow money on the credit of the United
States ;
(3) To regulate Commerce with foreign Nations, and
among the several States, and with the Indian Tribes;
(4) To establish an uniform Rule of Naturalization,
and uniform Laws on the subject of Bankruptcies
throughout the United States;
130 Madison s Debates in Federal Convention
(5) To coin Money, regulate the Value thereof, and
of foreign Coin, and fix the Standard of Weights and
Measures;
(6) To provide for the Punishment of counterfeiting
the Securities and current Coin of the United States;
(7) To establish Post Offices and post Roads;
(8) To promote the Progress of Science and useful
Arts, by securing for limited Times to Authors and
Inventors the exclusive Right to their respective Writ-
ings and Discoveries;
(9) To constitute Tribunals inferior to the supreme
Court;
(10) To define and punish Piracies and Felonies com-
mitted on the high Seas, and Offenses against the Law
of Nations;
(11) To declare War, grant Letters of Marque and
Reprisal, and make Rules concerning Captures on Land
and Water;
(12) To raise and support Armies, but no Appropri-
ation of Money to that Use shall be for a longer Term
than two Years;
(13) To provide and maintain a Navy;
(14) To make Rules for the Government and Regula-
tion of the land and naval Forces;
(15) To provide for calling forth the Militia to exe-
cute the Laws of the Union, suppress Insurrections and
repel Invasions;
(16) To provide for organizing, arming, and disciplin-
ing the Militia, and for governing such Part of them as
may be employed in the Service of the United States,
reserving to the States respectively, the Appointment
of the Officers, and the Authority of training the
Militia according to the discipline prescribed by Con-
gress;
And a More Perfect Society of Nations 131
(17) To exercise exclusive Legislation in all Cases
whatsoever, over such District (not exceeding ten
Miles square) as may, by Cession of particular States,
and the Acceptance of Congress, become the seat of
the Government of the United States, and to exercise
like Authority over all Places purchased by the Consent
of the Legislature of the State in which the Same shall
be, for the Erection of Forts, Magazines, Arsenals,
dock-Yards, and other needful Buildings; — And
(18) To make all Laws which shall be necessary and
proper for carrying into Execution the foregoing
Powers, and all other Powers vested by this Constitu-
tion in the Government of the United States, or in any
Department or Officer thereof.
Section 9. (1) The Migration or Importation of such
Persons as any of the States now existing shall think
proper to admit, shall not be prohibited by the Con-
gress prior to the Year one thousand eight hundred
and eight, but a tax or duty may be imposed on such
Importation, not exceeding ten dollars for each Person.
(2) The Privilege of the Writ of Habeas Corpus
shall not be suspended, unless when in Cases of Rebel-
lion or Invasion the public Safety may require it.
(3) No Bill of Attainder or ex post facto Law shall
be passed.
* (4) No Capitation, or other direct, Tax shall be laid,
unless in Proportion to the Census or Enumeration
herein before directed to be taken.
(5) No Tax or Duty shall be laid on Articles exported
from any State.
(6) No Preference shall be given by any Regulation
of Commerce or Revenue to the Ports of one State
over those of another: nor shall Vessels bound to, or
* See XVI Amendment.
132 Madison's Debates in Federal Convention
from, one State, be obliged to enter, clear, or pay
Duties in another.
(7) No Money shall be drawn from the Treasury, but
in Consequence of Appropriations made by Law; and
a regular Statement and Account of the Receipts and
Expenditures of all public Money shall be published
from time to time.
(8) No Title of Nobility shall be granted by the
United States; and no Person holding any Office of
Profit or Trust under them, shall, without the Consent
of the Congress, accept of any present, Emolument,
Office, or Title, of any kind whatever, from any King,
Prince, or foreign State.
Section 10. (1) No State shall enter into any Treaty,
Alliance, or Confederation; grant Letters of Marque
and Reprisal; coin Money; emit Bills of Credit; make
any Thing but gold and silver Coin a Tender in Pay-
ment of Debts; pass any Bill of Attainder, ex post
facto Law, or Law impairing the Obligation of Con-
tracts, or grant any Title of Nobility.
(2) No State shall, without the Consent of the Con-
gress, lay any Imposts or Duties on Imports or
Exports, except what may be absolutely necessary for
executing its inspection Laws : and the net Produce of
all Duties and Imposts, laid by any State on Imports
or Exports, shall be for the Use of the Treasury of the
United States ; and all such Laws shall be subject to the
Revision and Control of the Congress.
(3) No State shall, without the Consent of Congress,
lay any duty of Tonnage, keep Troops, or Ships of War
in time of Peace, enter into any Agreement or Compact
with another State, or with a foreign Power, or engage
in War, unless actually invaded, or in such imminent
Danger as will not admit of delay.
And a More Perfect Society of Nations 133
Article II.
Section I. (1) The executive Power shall be vested
in a President of the United States of America. He
shall hold his Office during the Term of four Years,
and, together with the Vice President, chosen for the
same Term, be elected, as follows:
(2) Each State shall appoint, in such Manner as the
Legislature thereof may direct, a Number of Electors,
equal to the whole Number of Senators and Represen-
tatives to which the State may be entitled in the Con-
gress : but no Senator or Representative, or Person
holding an Office of Trust or Profit under the United
States, shall be appointed an Elector.
*[The Electors shall meet in their respective States,
and vote by Ballot for two persons, of whom one at
least shall not be an Inhabitant of the same State with
themselves. And they shall make a List of all the Per-
sons voted for, and of the Number of Votes for each;
which List they shall sign and certify, and transmit
sealed to the Seat of the Government of the United
States, directed to the President of the Senate. The
President of the Senate shall, in the Presence of the
Senate and House of Representatives, open all the Cer-
tificates, and the Votes shall then be counted. The Per-
son having the greatest Number of Votes shall be the
President, if such Number be a Majority of the whole
Number of Electors appointed; and if there be more
than one who have such Majority, and have an equal
Number of Votes, then the House of Representatives
shall immediately chuse by Ballot one of them for Presi-
dent; and if no Person have a Majority, then from the
five highest on the List the said House shall in like
* This clause has been superseded by the twelfth amendment.
134 Madison's Debates in Federal Convention
Manner chuse the President. But in chusing the Presi-
dent, the Votes shall be taken by States, the Represen-
tation from each State having one Vote; A quorum for
this Purpose shall consist of a Member or Members
from two thirds of the States, and a Majority of all the
States shall be necessary to a Choice. In every Case,
after the Choice of the President, the Person having the
greatest Number of Votes of the Electors shall be the
Vice President. But if there should remain two or
more who have equal Votes, the Senate shall chuse
from them by Ballot the Vice President.]
(3) The Congress may determine the Time of chusing
the Electors, and the Day on which they shall give
their Votes; which Day shall be the same throughout
the United States.
(4) No Person except a natural born Citizen, or a
Citizen of the United States, at the time of the Adop-
tion of this Constitution, shall be eligible to the Office
of President; neither shall any Person be eligible to
that Office who shall not have attained to the Age of
thirty five Years, and been fourteen Years a Resident
within the United States.
(5) In Case of the Removal of the President from
Office, or of his Death, Resignation, or Inability to dis-
charge the Powers and Duties of the said Office, the
Same shall devolve on the Vice President, and the
Congress may by Law provide for the Case of Re-
moval, Death, Resignation or Inability, both of the
President and Vice President, declaring what Officer
shall then act as President, and such Officer shall act
accordingly, until the Disability be removed, or a Pres-
ident shall be elected.
(6) The President shall, at stated Times, receive for
his Services, a Compensation, which shall neither be
And a More Perfect Society of Nations 135
encreased nor diminished during the Period for which
he shall have been elected, and he shall not receive
within that Period any other Emolument from the
United States, or any of them.
(7) Before he enter on the Execution of his Office, he
shall take the following Oath or Affirmation: — " I do
solemly swear (or affirm) that I will faithfully execute
the Office of President of the United States, and will
to the best of my Ability, preserve, protect and defend
the Constitution of the United States."
Section 2. (1) The President shall be Commander in
Chief of the Army and Navy of the United States, and
of the Militia of the several States, when called into
the actual Service of the United States; he may require
the Opinion, in writing, of the principal Officer in each
of the executive Departments, upon any Subject relat-
ing to the Duties of their respective Offices, and he
shall have Power to grant Reprieves and Pardons for
Offences against the United States, except in Cases of
Impeachment.
(2) He shall have Power, by and with the Advice and
Consent of the Senate, to make Treaties, provided two
thirds of the Senators present concur; and he shall nom-
inate, and by and with the Advice and Consent of the
Senate, shall appoint Ambassadors, other public Min-
isters and Consuls, Judges of the supreme Court, and
all other Officers of the United States, whose Appoint-
ments are not herein otherwise provided for, and which
shall be established by Law: but the Congress may by
Law vest the Appointment of such inferior Officers,
as they think proper, in the President alone, in the
Courts of Law, or in the Heads of Departments.
(3) The President shall have Power to fill up all
Vacancies that may happen during the Recess of the
136 Madison's Debates in Federal Convention
Senate, by granting Commissions which shall expire at
the End of their next session.
Section 3. He shall from time to time give to the
Congress Information of the State of the Union, and
recommend to their Consideration such Measures as he
shall judge necessary and expedient; he may, on extra-
ordinary Occasions, convene both Houses, or either of
them, and in Case of Disagreement between them, with
Respect to the Time of Adjournment, he may adjourn
them to such Time as he shall think proper; he shall
receive Ambassadors and other public Ministers; he
shall take Care that the Laws be faithfully executed,
and shall Commission all the Officers of the United
States.
Section 4. The President, Vice President and all
civil Officers of the United States, shall be removed
from Office on Impeachment for, and Conviction of,
Treason, Bribery, or other high Crimes and Misde-
meanors.
Article III.
Section i. The judicial Power of the United States,
shall be vested in one supreme Court, and in such infer-
ior Courts as the Congress may from time to time
ordain and establish. The Judges, both of the supreme
and inferior Courts, shall hold their Offices during
good Behaviour, and shall, at Stated Times, receive for
their Services, a Compensation, which shall not be
diminished during their Continuance in Office.
Section 2. (1) The judicial Power shall extend to all
Cases, in Law and Equity, arising under this Constitu-
tion, the Laws of the United States, and Treaties made,
or which shall be made, under their Authority; — to all
And a More Perfect Society of Nations 137
Cases affecting Ambassadors, or other public Ministers
and Consuls; — to all Cases of admiralty and mari-
time Jurisdiction; — to Controversies to which the
United States shall be a Party; — to Controversies
between two or more States; — between a State and
Citizens of another State; — between Citizens of differ-
ent States; — between Citizens of the same State claim-
ing Lands under Grants of different States, and between
a State, or the Citizens thereof, and foreign States,
Citizens or Subjects.
(2) In all Cases affecting Ambassadors, other public
Ministers and Consuls, and those in which a State shall
be Party, the supreme Court shall have original Juris-
diction. In all the other Cases before mentioned, the
supreme Court shall have appellate Jurisdiction, both
as to Law and Fact, with such Exceptions, and under
such Regulations as the Congress shall make.
(3) The Trial of all Crimes, except in Cases of
Impeachment, shall be by Jury; and such Trial shall be
held in the State where the said Crimes shall have been
committed; but when not committed within any State,
the Trial shall be at such Place or Places as the Con-
gress may by Law have directed.
Section 3. (1) Treason against the United States,
shall consist only in levying War against them, or in
adhering to their Enemies, giving them Aid and Com-
fort. No Person shall be convicted of Treason unless
on the Testimony of two Witnesses to the same overt
Act, or on Confession in open Court.
(2) The Congress shall have Power to declare the
Punishment of Treason, but no Attainder of Treason
shall work Corruption of Blood, or Forfeiture except
during the Life of the Person attainted.
138 Madison's Debates in Federal Convention
Article IV.
Section i. Full Faith and Credit shall be given in
each State to the public Acts, Records, and judicial
Proceedings of every other State. And the Congress
may by general Laws prescribe the Manner in which
such Acts, Records and Proceedings shall be proved,
and the Effect thereof.
Section 2. (1) The Citizens of each State shall be
entitled to all Privileges and Immunities of Citizens in
the several States.
(2) A Person charged in any State with Treason,
Felony, or other Crime, who shall flee from Justice,
and be found in another State, shall on Demand of the
executive Authority of the State from which he fled, be
delivered up, to be removed to the State having juris-
diction of the Crime.
(si n Person held to Service or Labour in one State,
under the Laws thereof, escaping into another, shall,
in Consequence of any Law or Regulation therein, be
discharged from such Service or Labour, but shall be
delivered up on Claim of the Party to whom such Ser-
vice or Labour may be due.
Section 3. (1) New States may be admitted by the
Congress into this Union; but no new State shall be
formed or erected within the Jurisdiction of any other
State; nor any State be formed by the Junction of
two or more States, or Parts of States, without the
Consent of the Legislatures of the States concerned
as well as of the Congress.
(2) The Congress shall have Power to dispose of and
make all needful Rules and Regulations respecting
the Territory or other Property belonging to the United
States; and nothing in this Constitution shall be so con-
And a More Perfect Society of Nations 139
strued as to Prejudice any Claims of the United States,
or of any particular State.
Section 4. The United States shall guarantee to
every State in this Union a Republican Form of Gov-
ernment, and shall protect each of them against
Invasion; and on Application of the Legislature, or of
the Executive (when the Legislature cannot be con-
vened) against domestic Violence.
Article V.
The Congress, whenever two-thirds of both Houses
shall deem it necessary, shall propose Amendments to
this Constitution, or, on the Application of the Legis-
latures of two thirds of the several States, shall call
a Convention for proposing Amendments, which, in
either Case, shall be valid to all Intents and Purposes,
as Part of this Constitution, when ratified by the Legis-
latures of three fourths of the several States, or by
Conventions in three fourths thereof, as the one or the
other Mode of Ratification may be proposed by the
Congress; Provided that no Amendment which may
be made prior to the Year One thousand eight hundred
and eight shall in any Manner affect the first and fourth
Clauses in the Ninth Section of the first Article; and
that no State, without its Consent, shall be deprived
of it's equal Suffrage in the Senate.
Article VI.
(1) All Debts contracted and Engagements entered
into, before the Adoption of this Constitution, shall
be as valid against the United States under this Con-
stitution, as under the Confederation.
(2) This Constitution, and the Laws of the United
140 Madison s Debates in Federal Convention
States which shall be made in Pursuance thereof; and
all Treaties made, or which shall be made, under the
Authority of the United States, shall be the supreme
Law of the Land; and the Judges in every State shall
be bound thereby, any Thing in the Constitution or
Laws of any State to the Contrary notwithstanding.
(3) The Senators and Representatives before men-
tioned, and the Members of the several State Legisla-
tures, and all executive and judicial Officers, both of the
United States and of the several States, shall be bound
by Oath or Affirmation, to support this Constitution;
but no religious Test shall ever be required as a Quali-
fication to any Office or public Trust under the United
States.
Article VII.
The Ratification of the Conventions of nine States,
shall be sufficient for the Establishment of this Con-
stitution between the States so ratifying the Same.
Done in Convention by the Unanimous Consent of
the States present the Seventeenth Day of September
in the Year of our Lord one thousand seven hundred
and Eighty seven, and of the Independence of the
United States of America the Twelfth. In Witness
whereof We have hereunto subscribed our Names.
G?: WASHINGTON
Presidt and deputy from Virginia
New Hampshire.
John Langdon Nicholas Gilman
Massachusetts.
Nathaniel Gorham Rufus King
Connecticut.
Wm. Saml. Johnson Roger Sherman
And a More Perfect Society of Nations 141
New York.
Alexander Hamilton
New Jersey.
Wil: Livingston Wm. Patterson
David Brearley Jona : Dayton
Pennsylvania.
B. Franklin Thomas Mifflin
Robt. Morris Geo. Clymer
Thos. Fitzsimons Jared Ingersoll
James Wilson Gouv Morris
Delaware.
Geo : Read Gunning Bedford Jim
John Dickinson Richard Bassett
Jaco: Broom
Maryland.
James McHenry Dan of St Thos Jeni-
Danl. Carroll fer
Virginia.
John Blair — James Madison Jr.
North Carolina.
Wm. Blount Richd Dobbs Spaight,
Hu Williamson
South Carolina.
J. Rutledge Charles Cotesworth
Charles Pinckney Pinckney
Pierce Butler
Georgia.
William Few Abr Baldwin
Attest WILLIAM JACKSON Secretary
Articles in Addition To, and Amendment Of,
the Constitution of the United States of
America, Proposed by Congress, and Ratified
by the Legislatures of the Several States,
Pursuant to the Fifth Article of the Ori-
ginal Constitution.
[Article I.]*
Congress shall make no law respecting an establish-
ment of religion, or prohibiting the free exer^e
thereof; or abridging the freedom of speech, or of the
press; or the right of the people peaceably to assemble,
and to petition the Government for a redress of griev-
ances.
[Article II.]
A well regulated Militia, being necessary to the
security of a free State, the right of the people to keep
and bear Arms, shall not be infringed.
* The first ten amendments to the Constitution of the United States
were proposed to the legislatures of the several States by the First
Congress, on the 25th of September, 1789. They were ratified by the
following States, and the notifications of ratification by the governors
thereof were successively communicated by the President to Congress:
New Jersey, November 20, 1789; Maryland, December 19, 1789;
North Carolina, December 22, 1789; South Carolina, January 19, 1790;
New Hampshire, January 25, 1790; Delaware, January 28, 1790;
Pennsylvania, March 10, 1790; New York, March 27, 1790; Rhode
Island, June 15, 1790; Vermont, November 3, 1791, and Virginia,
December 15, 1791. There is no evidence on the journals of Congress
that the legislatures of Connecticut, Georgia, and Massachusetts
ratified them.
Madison's Debates in Federal Convention 143
[Article III.]
No Soldier shall, in time of peace, be quartered in
any house, without the consent of the Owner, nor in
time of war, but in a manner to be prescribed by law.
[Article IV.]
The right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable
searches and seizures, shall not be violated, and no
Warrants shall issue, but upon probable cause, sup-
ported by Oath or affirmation, and particularly describ-
ing the place to be searched, and the persons or things
to be seized.
[Article V.]
No person shall be held to answer for a capital, or
otherwise infamous crime, unless on a presentment or
indictment of a Grand Jury, except in cases arising in
the land or naval forces, or in the Militia, when in
actual service in time of War or public danger; nor
shall any person be subject for the same offence to be
twice put in jeopardy of life or limb; nor shall be
compelled in any criminal case to be a witness against
himself, nor be deprived of life, liberty, or property,
without due process of law; nor shall private property
be taken for public use, without just compensation.
[Article VI.]
In all criminal prosecutions, the accused shall enjoy
the right to a speedy and public trial, by an impartial
jury of the State and district wherein the crime shall
have been committed, which district shall have been
previously ascertained by law, and to be informed of
144 Madison's Debates in Federal Convention
the nature and cause of the accusation; to be confronted
with the witnesses against him; to have compulsory
process for obtaining witnesses in his favor, and to
have the Assistance of Counsel for his defence.
[Article VII.]
In suits at common law, where the value in contro-
versy shall exceed twenty dollars, the right of trial by
jury shall be preserved, and no fact tried by a jury,
shall be otherwise re-examined in any Court of the
United States, than according to the rules of the com-
mon law.
[Article VIII. ]
Excessive bail shall not be required, nor excessive
fines imposed, nor cruel and unusual punishments
inflicted.
[Article IX.]
The enumeration in the Constitution, of certain
rights, shall not be construed to deny or disparage
others retained by the people.
[Article X.]
The powers not delegated to the United States by
the Constitution, nor prohibited by it to the States, are
reserved to the States respectively, or to the people.
Article XL*
The Judicial power of the United States shall not
be construed to extend to any suit in law or equity, com-
* The eleventh amendment to the Constitution of the United States
was proposed to the legislatures of the several States by the Third
Congress on the 5th of March, 1794; and was declared in a message
from the President to Congress, dated the 8th of January, 1798, to
have been ratified by the legislatures of three-fourths of the States.
And a More Perfect Society of Nations 145
menced or prosecuted against one of the United States
by Citizens of another State, or by Citizens or Sub-
jects of any Foreign State.
Article XII. *
The electors shall meet in their respective states and
vote by ballot for President and Vice-President, one of
whom, at least, shall not be an inhabitant of the same
state with themselves; they shall name in their ballots
the person voted for as President, and in distinct ballots
the person voted for as Vice-President, and they shall
make distinct lists of all persons voted for as Presi-
dent, and of all persons voted for as Vice-President,
and of the number of votes for each, which lists they
shall sign and certify, and transmit sealed to the seat
of the government of the United States, directed to the
President of the Senate ; — The President of the Senate
shall, in presence of the Senate and House of Represen-
tatives, open all the certificates and the votes shall
then be counted; — The person having the greatest
number of votes for President, shall be the President,
if such number be a majority of the whole number of
Electors appointed; and if no person have such major-
ity, then from the persons having the highest numbers
not exceeding three on the list of those voted for as
President, the House of Representatives shall choose
immediately, by ballot, the President. But in choosing
the President, the votes shall be taken by states, the
representation from each state having one vote; a
* The twelfth amendment to the Constitution of the United States
was proposed to the legislatures of the several States by the Eighth
Congress, on the 12th of December, 1803, in lieu of the original third
paragraph of the first section of the second article; and was declared
in a proclamation of the Secretary of State, dated the 25th of Septem-
ber, 1804, to have been ratified by the legislatures of three-fourths of
the States.
146 Madison's Debates in Federal Convention
quorum for this purpose shall consist of a member or
members from two-thirds of the states, and a majority
of all the states shall be necessary to a choice. And
if the House of Representatives shall not choose a
President whenever the right of choice shall devolve
upon them, before the fourth day of March next fol-
lowing, then the Vice-President shall act as President,
as in the case of the death or other constitutional dis-
ability of the President. — The person having the great-
est number of votes as Vice-President, shall be the
Vice-President, if such number be a majority of the
whole number of Electors appointed, and if no person
have a majority, then from the two highest numbers
on the list, the Senate shall choose the Vice-President;
a quorum for the purpose shall consist of two-thirds
of the whole number of Senators, and a majority of the
whole number shall be necessary to a choice. But no
person constitutionally ineligible to the office of Presi-
dent shall be eligible to that of Vice-President of the
United States.
Article XIII.*
Section i. Neither slavery nor involuntary servi-
tude, except as a punishment for crime whereof the
party shall have been duly convicted, shall exist within
the United States, or any place subject to their juris-
diction.
Section 2. Congress shall have power to enforce
this article by appropriate legislation.
* The thirteenth amendment to the Constitution of the United States
was proposed to the legislatures of the several States by the Thirty-
eighth Congress, on the ist of February, 1865, and was declared, in
a proclamation of the Secretary of State, dated the 18th of December,
1865, to have been ratified by the legislatures of twenty-seven of the
thirty-six States.
And a More Perfect Society of Nations 147
Article XIV.*
Section i. All persons born or naturalized in the
United States, and subject to the jurisdiction thereof,
are citizens of the United States and of the State
wherein they reside. No State shall make or enforce
any law which shall abridge the privileges or immun-
ities of citizens of the United States; nor shall any
State deprive any person of life, liberty, or property,
without due process of law; nor deny to any person
within its jurisdiction the equal protection of the laws.
Section 2. Representatives shall be apportioned
among the several States according to their respective
numbers, counting the whole number of persons in each
State, excluding Indians not taxed. But when the right
to vote at any election for the choice of electors for
President and Vice-President of the United States,
Representatives in Congress, the Executive and Judi-
cial officers of a State, or the members of the Legisla-
ture thereof, is denied to any of the male inhabitants of
such State, being twenty-one years of age, and citizens
of the United States, or in any way abridged, except for
participation in rebellion, or other crime, the basis of
representation therein shall be reduced in the propor-
tion which the number of such male citizens shall bear
to the whole number of male citizens twenty-one years
of age in such State.
Section 3. No person shall be a Senator or Repre-
sentative in Congress, or elector of President and Vice-
President, or hold any office, civil or military, under
* The fourteenth amendment to the Constitution of the United
States was proposed to the legislatures of the several States by the
Thirty-ninth Congress, on the 16th of June, 1866, and was declared,
in a proclamation of the Secretary of State, dated the 28th of July,
1868, to have been ratified by the legislatures of thirty of the thirty-
six States.
i Madison's Debates in Federal Convention
t nited States, or under any State, who, having
previously taken an oath, as a member of Congress, or
as an officer of the United States, or as a member of
any State legislature, or as an executive or judicial
officer of any State, to support the Constitution of the
United States, shall have engaged in insurrection or
rebellion against the same, or given aid or comfort
to the enemies thereof. But Congress may by a vote
of two-thirds of each House, remove such disability.
Section 4. The validity of the public debt of the
United States authorized by law, including debts
incurred for payment of pensions and bounties for
services in suppressing insurrection or rebellion, shall
not be questioned. But neither the United States nor
any State shall assume or pay any debt or obligation
incurred in aid of insurrection or rebellion against the
United States, or any claim for the loss or emanci-
pation of any slave; but all such debts, obligations and
claims shall be held illegal and void.
Section 5. The Congress shall have power to
enforce, by appropriate legislation, the provisions of
this article.
Article XV.*
Section i. The right of citizens of the United
States to vote shall not be denied or abridged by the
United States or by any State on account of race, color,
or previous conditions of servitude —
Section 2. The Congress shall have power to
enforce this article by appropriate legislation.
* The fifteenth amendment to the Constitution of the United States
was proposed to the legislatures of the several States by the Fortieth
Congress on the 27th of February, 1869, and was declared, in a
proclamation of the Secretary of State, dated March 30, 1870, to have
been ratified by the legislatures of twenty-nine of the thirty-seven
States.
And a More Perfect Society of Nations 149
Article XVI.*
The Congress shall have power to lay and collect
taxes on incomes, from whatever source derived, with-
out apportionment among the several States, and with-
out regard to any census or enumeration.
Article XVII.f
(1) The Senate of the United States shall be composed
of two Senators from each State, elected by the people
thereof, for six years; and each Senator shall have one
vote. The electors in each State shall have the quali-
fications requisite for electors of the most numerous
branch of the State Legislatures.
(2) When vacancies happen in the representation of
any State in the Senate, the executive authority of such
State shall issue writs of election to fill such vacancies :
Provided, That the legislature of any State may
empower the executive thereof to make temporary
appointment until the people fill the vacancies by elec-
tion as the legislature may direct.
(3) This amendment shall not be so construed as to
affect the election or term of any Senator chosen before
it becomes valid as part of the Constitution.
*The sixteenth amendment to the Constitution of the United States
was proposed to the legislatures of the several States by the Sixty-first
Congress on the 12th of July, 1909, and was declared, in an announce-
ment by the Secretary of State, dated February 25, 1913, to have
been ratified by the legislatures of thirty-eight of the forty-eight States.
t The seventeenth amendment to the Constitution of the United
States was proposed to the legislatures of the several States by the
Sixty-second Congress on the 16th day of May, 1912, and was declared,
in an announcement by the Secretary of State, dated May 31, 1913,
to have been ratified by the legislatures of thirty-six of the forty-eight
States.
r>i
